Base Childrenswear Ltd v Otshudi

An Employment Tribunal must assess injury to feelings by the actual effect of the discriminatory conduct on the individual complainant. An isolated act does not necessarily fall within the lowest Vento band. The assessment remains fact-specific.

Compensation for discrimination is compensatory, not punitive. Tribunals must distinguish injury to feelings, aggravated damages and personal injury, consider the totality of non-pecuniary compensation, and avoid double recovery. Post-dismissal conduct may aggravate injury to feelings. A statutory uplift for failure to follow the ACAS Code may overlap with aggravated damages where both awards reflect the same failure to deal with a grievance.

The Claimant was summarily dismissed from her employment as an in-house photographer. The Employment Tribunal upheld her complaint of racial harassment in relation to the dismissal, but dismissed as out of time her complaints concerning six earlier incidents.

At a remedies hearing, the Tribunal awarded £16,000 for injury to feelings, £5,000 aggravated damages and £3,000 for personal injury. It also imposed a 25% uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 for failure to comply with the ACAS Code.

The employer appealed, principally alleging excessive awards, irrelevant considerations, insufficient apportionment of psychiatric injury, and double-counting between aggravated damages and the ACAS uplift.

1. Appeal allowed in part. The Tribunal was entitled to award £16,000 for injury to feelings. Although the unlawful discrimination was a single dismissal, the applicable question was its effect on this Claimant. The dismissal was abrupt, based on a plainly false explanation, and communicated in an intimidating manner. It was permissible to place the award in the middle of the middle Vento band. The award was not manifestly excessive.

2. The Tribunal was entitled to regard the Claimant's prompt grievance, ACAS contact and proceedings as evidence bearing on the impact of the discriminatory treatment. It did not treat the mere pursuit of a claim as a compensable loss or an irrelevant aggravating feature.

3. The £5,000 aggravated-damages award was generally sustainable. The Tribunal had confined it to post-dismissal conduct which aggravated the original injury, including the continued false redundancy case, inadequate disclosure, the late allegation of suspected theft, and the absence of an apology. Those matters had not been double-counted in the injury-to-feelings or personal-injury awards.

4. The £3,000 personal-injury award was also sustainable. The medical evidence supported a three-month depressive illness following dismissal. The Tribunal had considered the earlier allegations, for which no liability had been found, and permissibly concluded that there was no evidential basis to attribute part of the depression to them.

5. There was, however, an overlap between aggravated damages and the 25% uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. Both took account of the employer's failure to respond to the grievance. The Tribunal should have considered that overlap when reviewing the overall compensation. By consent, the EAT determined the matter itself, reducing aggravated damages by £1,000 to £4,000. Interest and the uplift were to be recalculated by agreement.

• Employment Appeal Tribunal: Allowed the employer's appeal only to the limited extent of overlap between aggravated damages and the statutory ACAS uplift. The aggravated-damages award was reduced by £1,000.
• Employment Tribunal, East London: Upheld racial-harassment liability in respect of dismissal and made remedies awards, including injury to feelings, aggravated damages, personal injury and a 25% uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.