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10% uplift on discrimination compensation

The Employment Appeal Tribunal (“EAT”) has supported the view that compensation for discrimination claims is subject to a 10% uplift following the Court of Appeal’s decision in the case of Simmons v Castle. In Cadogan Hotel Partners Ltd v Ozog the employee brought claims of sex discrimination and harassment against the employer. The EAT held that there was no entitlement to a 25% uplift due to the employer’s failure to follow the ACAS Code as the grievance was not in writing. Where a grievance is in writing and an employer deals with the grievance unreasonably, Tribunals have a discretion to uplift a successful employee’s compensation by up to 25%. This was not the case here as the grievance was presented orally. The EAT therefore disagreed with the Employment Tribunal who had increased the award. The Employment Tribunal Judgment alluded to the fact that the resignation mentioned the complaints but the EAT held that this was wrong.

The employee was awarded £10,000 in respect of her sex discrimination and harassment claims. The EAT considered that the award was made after 1 April 2013 and followed the case of Simmons v Castle which laid down the rule in respect of general damages. The EAT has held that the Tribunal erred in finding that the injury to feelings award fell into the middle band of the Vento guidelines. These guidelines set down three bands under which compensation may fall depending on the nature of the discrimination. There was one incident of sexual harassment which could be classified as “mild”. The employee said that the harassment made her feel “very” uncomfortable. The EAT substituted an award for £6,000 which taking into account the 10% increase amounted to an award of £6,600 for injury to feelings.

Employees would do well to ensure that complaints are raised in writing rather than orally as it is clear that this can have an effect on any resulting compensation. It also provides less scope for employers to let grievances slip through the net.

Posted in: Law

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