Khans Solicitors v F Kaiser

Aggravated damages in discrimination cases are compensatory and may be awarded only where an additional aggravating feature, beyond the injury already compensated, causes further injury to feelings. The tribunal must make findings linking the feature to that additional injury; serious or objectionable conduct alone cannot support a punitive award. It should avoid double counting and may make a single injury-to-feelings award reflecting any aggravation. Where discrimination and an independent cause both contribute to sickness absence, compensation must reflect the assessed chance that the claimant would have worked absent discrimination during each relevant period.

Khans Solicitors, a firm of solicitors, employed Ms Kaiser until dismissing her in February 2021. In a liability judgment sent on 12 April 2023, the Employment Tribunal upheld claims including unfair dismissal, disability discrimination and sex-related harassment. At a remedy hearing, it awarded £25,000 for injury to feelings, £5,000 aggravated damages and £672.56 for the difference between statutory sick pay and full pay for four weeks.

The firm appealed the latter two components of a total award of £109,020.64. It challenged whether the aggravated-damages award was adequately reasoned and how the sick-pay loss was calculated. The EAT considered the requirements for aggravated damages and the method for assessing the counterfactual loss.

1. Aggravated damages. The appeal succeeded because the Tribunal did not identify additional aggravating factors that caused injury beyond that already compensated by the £25,000 injury-to-feelings award. Aggravated damages are compensatory, not punitive, and compensate only for additional distress. The governing question is what further distress the particular claimant suffered because of the aggravating feature. Conduct such as treating a discrimination complaint as trivial may qualify, but the Tribunal must make findings connecting the conduct to increased injury. A respondent’s status as a solicitors’ firm, an employee’s influence, a complaint made without result, the absence of information about an investigation, or a dismissal following disclosure of a health condition do not, without that analysis, establish the required link. The Tribunal also had to consider whether any injury was already included in the conventional award and guard against double counting. Alexander v Home Office [1988] ICR 685, HM Prison Service v Salmon [2001] IRLR 425 and Commissioner of Police of the Metropolis v Shaw [2012] ICR 464 informed that approach. The matter was remitted to the same Tribunal to decide whether aggravated damages should be awarded and, if so, in what sum.
2. Sick-pay loss. The Tribunal had not explained why it awarded the difference between statutory sick pay and full net pay for four weeks. It should assess the chance that Ms Kaiser would have worked absent discrimination before contracting Covid, and separately the chance she would have worked after contracting Covid. For each period, it should award the corresponding percentage of the difference between full net pay and statutory sick pay. This issue was also remitted to the same Tribunal.
3. Substitution and remission. The EAT could not substitute a remedy decision because only one possible answer was not available: Jafri v Lincoln College [2014] IRLR 544. Remission to the same Tribunal was appropriate because it had made numerous detailed findings that were not successfully challenged and was better placed than a newly constituted Tribunal to reassess the remedy, applying Sinclair Roche & Temperley v Heard [2004] IRLR 763.
4. Payment and enforcement. The EAT also observed that, under Employment Tribunal Rules 2024, a monetary judgment is generally payable within 14 days unless another date is set or a stay is granted. An appeal does not itself stay payment. Under section 15 of the Employment Tribunals Act 1996, an un-stayed registered award may be enforceable in the County Court. These observations were not part of the issues determined on appeal.

1. Employment Appeal Tribunal: In [2026] EAT 137 , allowed the appeal on the aggravated-damages award and the statutory-sick-pay calculation, remitting both issues to the same Tribunal.
2. Employment Tribunal: After a liability judgment sent on 12 April 2023, it determined remedy following hearings on 6 June and 8 July 2024. It awarded, among other sums, £5,000 aggravated damages and £672.56 for the difference between statutory sick pay and full pay. The EAT remitted those two matters for redetermination.