Chawla v Hewlett Packard Ltd

For harassment under section 26 of the Equality Act 2010, the claimant’s perception is assessed as a fact, but the surrounding circumstances and whether the alleged effect was reasonable require an objective assessment. The alleged harasser’s intention, and the context of the conduct, may be relevant to that assessment.

Employment Tribunals must give adequate reasons when making no injury-to-feelings award for an established discriminatory act. Compensation must be confined to injury or loss caused or contributed to by the breach found. The civil-court 10% increase in general damages under Simmons v Castle does not apply to Employment Tribunal injury-to-feelings awards; such awards should instead reflect current monetary values.

The Claimant, who had a severe depressive illness and was disabled, remained absent from work after his employment transferred from Arcsight (UK) Ltd to Hewlett Packard Ltd. His access to corporate email and the intranet had been withdrawn. The Employment Tribunal held that the Respondent should have made reasonable adjustments to communicate timely information about employment terms and share-related benefits.

The Tribunal dismissed most disability-discrimination and harassment claims, although it found failures to make reasonable adjustments and a delay in joining the Respondent’s share purchase plan. It also awarded limited compensation. The Claimant appealed both the liability judgment, sent on 11 February 2013, and the remedy judgment, sent on 2 May 2013.

The central issues included the harassment test under section 26 of the Equality Act 2010, the adequacy of the Tribunal’s reasons on compensation, and whether its awards properly reflected the established discriminatory omissions.

1. Liability appeal dismissed. The Tribunal had not erred in rejecting the asserted wider consequences of the email-and-intranet PCP. Its findings did not support a conclusion that limited communication caused any failure to assess the Claimant’s medical condition, investigate grievances, or enable a return to work. The admitted breach of Regulation 14 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 affected all employees alike and was not disability discrimination.
2. Harassment. The Tribunal was entitled to reject the allegation arising from emails which referred to the Claimant’s mental capacity when exercising share options. Under section 26, the claimant’s perception is a factual matter, whereas the other circumstances and reasonableness are assessed objectively. The sender’s intention and the context of the communications were relevant circumstances. The Tribunal’s finding that the sender was trying to help made it reasonable to conclude that the emails did not have the statutory proscribed effect.
3. Injury to feelings. The £5,000 award for delayed notification of share options was within the Vento guidance. The Tribunal did, however, fail to give reasons for making no injury-to-feelings award in respect of the failure to communicate information about the Arcsight employee share purchase plan. That issue succeeded.
4. Personal injury and other remedies. The Tribunal gave no reason for excluding the period of hospitalisation from the time-limited exacerbation caused by the established failure concerning share options. The personal-injury award was therefore increased from £5,000 to £8,000 to include hospitalisation from 30 November 2009 to 12 January 2010. No error was shown in refusing an ACAS uplift, aggravated damages, or loss of earnings. The 10% civil-litigation uplift in Simmons v Castle did not apply to Employment Tribunal injury-to-feelings awards.

The remedy appeal was allowed only on the reasons issue concerning the Arcsight plan and the personal-injury award. The parties were urged to agree disposal of the outstanding injury-to-feelings issue to avoid remission.

• Employment Appeal Tribunal: liability appeal dismissed. Remedy appeal allowed only because the Employment Tribunal gave inadequate reasons for no injury-to-feelings award concerning the Arcsight plan and excluded hospitalisation from the personal-injury award.
• Employment Tribunal: liability judgment sent on 11 February 2013. It found failures to make reasonable adjustments and dismissed most other claims. Remedy judgment sent on 2 May 2013.