Edenbeck Limited v E Stevenson

An employment tribunal must assess injury-to-feelings compensation by reference to the actual effect of the unlawful conduct on the claimant. The examples given in Vento do not prescribe a factual template. An uplift for aggravating features must reflect the additional distress those features caused.

Under rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, unreasonable litigation conduct may cross the costs threshold. A party is not unreasonable merely for putting its case in professional cross-examination. Once the threshold is crossed, the tribunal must separately decide whether to award costs and, if so, the appropriate amount or proportion, having regard to the nature, gravity and effect of the conduct.

The claimant succeeded in the Employment Tribunal in complaints of direct sex discrimination and discrimination arising from disability, and in constructive unfair dismissal. The tribunal dismissed her harassment complaints. At a subsequent remedy and costs hearing it awarded compensation for injury to feelings, aggravated damages and interest, and ordered the respondent to pay the claimant's costs, subject to detailed assessment.

The respondent's appeal against the liability decision had been brought out of time. Its appeal to the Employment Appeal Tribunal therefore concerned only the remedy and costs decision. It challenged the injury-to-feelings award and alleged errors in the tribunal's treatment of litigation conduct and its decision to award all costs relating to the successful claims.

1. Appeal allowed in part. Grounds challenging the remedy award failed. The appeal succeeded on the costs decision insofar as the tribunal treated cross-examination as unreasonable conduct and failed properly to undertake the discretionary second stage of the costs exercise.

2. The respondent could not use an appeal against remedy to challenge the liability tribunal's characterisation of conduct as direct sex discrimination rather than harassment. The liability decision had found direct sex discrimination throughout the employment, including conduct capable in ordinary language of being described as abusive, offensive or humiliating.

3. The tribunal was entitled to place the injury-to-feelings award at the upper end of the middle Vento band and to increase it for aggravating features. The examples in Vento are not a factual straitjacket. The required focus is the actual impact of the unlawful conduct on the particular claimant. The tribunal was also entitled to distinguish anxiety caused by the respondent's conduct from anxiety caused by an earlier bereavement and an assault by strangers. The perversity challenge therefore failed.

4. The tribunal could treat the respondent's attempt to rely on an unsigned draft statement, known not to have been drafted or adopted by its proposed witness, as relevant unreasonable conduct. The respondent's proposed fresh text-message evidence did not satisfy the Ladd v Marshall criteria and did not materially assist it. The tribunal could also regard reliance on a further training certificate as unreasonable in the particular background, despite finding that Mr Mayall had not initially realised it was forged.

5. However, it was wrong in principle to treat the respondent's cross-examination of the claimant as unreasonable simply because the case put did not succeed or was distressing. There was no finding that the cross-examination itself had been conducted unprofessionally.

6. On its proper reading, the tribunal found the rule 76 threshold crossed by particular unreasonable conduct in conducting the litigation, not by finding that the whole response had had no reasonable prospect of success. It then had to decide separately whether to exercise the costs power and, if so, whether to award all, some or none of the relevant costs. It failed to demonstrate that assessment, including consideration of the nature, gravity and effect of the conduct. Although a broad-brush approach is permitted, that discrete stage cannot be omitted.

• Employment Appeal Tribunal: The respondent appealed the Employment Tribunal's remedy and costs decision. The remedy appeal was dismissed, but the costs challenge succeeded in part: [2023] EAT 128.
• Employment Tribunal: The claimant succeeded in claims of direct sex discrimination, discrimination arising from disability and constructive unfair dismissal. The tribunal later made remedy and costs awards. The citation of those decisions was not stated in the judgment.