Dr K Sharma v University of Portsmouth

In assessing compensation for discrimination, an Employment Tribunal must address the losses flowing from each act of discrimination it has upheld. It must construct the non-discriminatory counterfactual on the evidence, including the possibility of lawful events, and assess future loss on the chances shown by that evidence.

An unaddressed, material argument about missing evidence and the inferences to be drawn from it may require reconsideration. For an uplift under section 207A, unreasonable failures to comply with the relevant ACAS Code may be considered even if they were not maintained as separate discrimination or victimisation claims. The tribunal must consider the whole alleged Code non-compliance when deciding whether an uplift is just and equitable.

The claimant succeeded before the Southampton Employment Tribunal on complaints of direct race discrimination and one complaint of victimisation. At the remedies stage, the tribunal awarded compensation, subject to a later assessment of pension loss.

She appealed the remedy award. The appeal concerned whether the tribunal had addressed losses arising from two upheld discriminatory acts, its assessment of the chance of reappointment, the effect of undisclosed application forms, future promotion and return-to-work prospects, and the ACAS uplift.

The central issues were whether material matters and arguments had been left unaddressed, and whether the tribunal had adopted an unlawfully narrow approach to the uplift under the Trade Union and Labour Relations (Consolidation) Act 1992.

1. Appeal allowed in part. The Employment Tribunal erred by failing to address what loss of earnings, if any, flowed from its finding that the University had discriminatorily failed to bring the initial advertisement for the associate head role to the claimant’s attention. The tribunal had also failed to address the possible career consequences of its finding that the claimant was discriminatorily discouraged from pursuing the SFHEAQ.

2. The Appeal Tribunal could not substitute a finding that reappointment was inevitable. The liability findings did not yield only one possible counterfactual outcome. It remained possible that a general notification of the vacancy would have produced a competitive process. The fact-finding tribunal had to decide the issue on remission, applying the compensatory approach described in Chagger v Abbey National PLC [2010] IRLR 4.

3. The tribunal had not ignored the statistical evidence concerning reappointment. It permissibly considered that evidence with the limited sample and case-specific evidence about the candidates. Its conclusion of a 50 per cent chance in the actual competitive process was a permissible factual assessment. The challenge to the assessment of promotion prospects and the challenge to the assessment of the claimant’s future return to work were also dismissed as standalone grounds.

4. However, the tribunal failed to address the claimant’s material argument that an inference should be drawn from the non-disclosure of other candidates’ application forms and from documentary shortcomings identified in the liability judgment. The reappointment-chance issue must therefore be reconsidered afresh, taking account of all the evidence, the statistics, and any justified inference.

5. The tribunal erred in treating the ACAS uplift as confined to conduct which it had upheld as an act of discrimination or victimisation. Under section 207A, unreasonable failures to comply with the relevant Code may be considered for the uplift even where they were not pursued as freestanding Equality Act claims. The whole uplift question, including its amount and the compensation to which it applies, must be determined afresh.

6. The remitted issues were returned to the same tribunal. Applying the guidance in Sinclair Roche & Temperley (a firm) v Heard & Anor [2004] IRLR 673, it was appropriate because that tribunal knew the case well and had largely overlooked matters rather than reached fixed conclusions upon them.

• Employment Appeal Tribunal: Appeal allowed in part and specified remedy issues remitted to the same Employment Tribunal for fresh consideration.
• Southampton Employment Tribunal: Upheld complaints of direct race discrimination and one complaint of victimisation, then awarded compensation following a remedies hearing and two reconsiderations.