An employment tribunal can award compensation for ‘injury to feelings’ if an employee wins their discrimination claim. It is designed to compensate an employee for the upset and anxiety that the discrimination caused. The Employment Appeal Tribunal has recently looked at whether this award can be reduced for the employee’s contributory negligence.
In First Great Western v Waiyego, the employee brought various discrimination claims against her employer. She won only two of them. One related to a failure to provide a CBT (Cognitive Behavioural Therapy) course as a reasonable adjustment for her disability. She was awarded compensation including injury to feelings. The employer appealed to the Employment Appeal Tribunal. The employer said that the compensation should be reduced because the employee ‘contributed’ to the CBT failure (and therefore the damage) by not providing details of her previous CBT therapist.
The EAT said that reducing compensation for discrimination for contributory negligence would happen rarely, if ever. They said that it would be difficult to apply a principle which dealt with ‘fault’ to a claim which can occur without fault – some discrimination is unconscious rather than deliberate. If lawmakers had intended for contributory fault to be used in discrimination claims, the concept would have been included in the discrimination legislation (as it is in the unfair dismissal provisions). The EAT felt it was a dangerous game to suppose that a victim of discrimination, for example sexual harassment, might have brought that situation on themselves. If an employee has ‘contributed’ in some way to the damage they have suffered, that should be dealt with as a failure to mitigate (minimise) loss rather than contributory negligence.
This is a sensible decision. The potential difficulty in cases such as harassment is all too clear. In this case, the EAT also rejected the employee’s request to impose an additional penalty on the employer for deliberate and repeated employment law breaches, as well as her claim for aggravated damages. In relation to the latter, it said it lacked enthusiasm for separate awards for aggravated damages. That is good news for employers in theory. However, as the Court of Appeal has approved separate aggravated damages awards in recent years, any real change would need to come from the higher courts.