Wilson Barca LLP & Ors v Shirin

A final liability judgment which has not been appealed or reconsidered is res judicata between the parties. A respondent cannot, at a later remedy hearing, rely on a time-limit point to obtain a nil award while leaving that liability judgment undisturbed.

Compensation for injury to feelings must reflect the impact of the unlawful discrimination on the claimant. A tribunal must give coherent reasons for its placement within the Vento bands and for any aggregation of separate awards. Aggravated damages are compensatory, not punitive. They require findings that aggravating conduct caused additional injury to feelings beyond that covered by the basic award.

The Claimant succeeded before the Employment Tribunal in four allegations of age-related harassment and two allegations of sex-related harassment under the Equality Act 2010. Her other discrimination claims were dismissed. The Liability Judgment was not challenged.

At the remedy hearing, more than ten months after the Liability Judgment, the Respondents first contended that the six upheld allegations were out of time. The Tribunal formally extended time, awarded compensation for injury to feelings and awarded aggravated damages for the sex-related harassment.

The Respondents appealed the Remedy Judgment. The central issues were whether the time point could defeat compensation despite the final Liability Judgment, and whether the Tribunal had lawfully assessed injury to feelings and aggravated damages.

1. Appeal allowed in part. The challenge to the extension of time failed. The Liability Judgment was final and conclusive. It established the Respondents’ liability for the discriminatory acts. Since they had neither appealed it nor sought reconsideration, the question of liability was res judicata. Their attempt at the remedy hearing to obtain a nil award on a time-limit ground was incompatible with the continuing Liability Judgment. It was not for the Claimant to make a fresh application to extend time once that judgment had been promulgated.

2. In any event, an extension under section 123 of the Equality Act 2010 was plainly just and equitable. The Claimant had presented a discriminatory constructive-dismissal claim in time. The Respondents raised the point only at the remedy hearing, after liability had been determined on extensive evidence. They identified no prejudice caused by delay, whereas refusing an extension would deprive the Claimant of a remedy after justified findings of discrimination.

3. The Tribunal was entitled in principle to award injury to feelings. It had found that the discriminatory comments upset and substantially hurt the Claimant. That finding addressed the requisite causal impact and justified an award outside the lower Vento band.

4. However, the injury-to-feelings award could not stand. If the Tribunal had assessed the case overall as falling within the middle band, its aggregate award, which fell well within the upper band after uprating, was internally inconsistent. If it had instead assessed the age and sex harassment separately, it gave insufficient reasons for awarding the same substantial sum for four age-related incidents and two sex-related incidents committed by different individuals. Its reasons did not adequately explain the aggregate result.

5. The Tribunal was also entitled in principle to regard the senior partner’s sex-related abuse as insulting and oppressive, so that aggravated damages were available. But it failed to explain why the substantial basic award did not already compensate the Claimant, or how the aggravating features caused additional injury to her feelings. Aggravated damages must compensate that additional impact and must not punish the discriminator or duplicate the basic award.

6. The awards for injury to feelings, aggravated damages and interest were set aside. The assessment of injury to feelings, and whether and in what amount aggravated damages should be awarded, was remitted to the same Tribunal panel.

• Employment Appeal Tribunal — allowed the Respondents’ appeal against the Remedy Judgment on the assessment of injury to feelings and aggravated damages, but rejected the time-limit challenge. The compensation issues were remitted to the same panel.
• Employment Tribunal, London Central — the unappealed Liability Judgment upheld four age-related and two sex-related harassment allegations. The subsequent Remedy Judgment extended time and awarded compensation for injury to feelings, aggravated damages and interest.