Background
Ms F Kaiser worked for Khans Solicitors from April 2019 until February 2021. The Employment Tribunal found that the firm had discriminated against her because of matters arising from disability, failed to make reasonable adjustments, subjected her to sex-related harassment, and automatically unfairly dismissed her for asserting a statutory right to be paid. Its findings included failures to provide suitable workplace equipment, denial of training, a comment about attracting men if she did not wear a scarf, and dismissal following disclosure of another health condition.
The Tribunal awarded Kaiser £109,020.64 in total. Khans Solicitors was permitted to appeal only two comparatively small components: £5,000 in aggravated damages and £672.56 representing four weeks of the difference between statutory sick pay and full net wages.
The Court’s Holding
The Employment Appeal Tribunal held that the Tribunal had not adequately justified the aggravated-damages award. Such damages are compensatory, not punitive, and require an additional aggravating factor that caused additional injury beyond that already compensated by an injury-to-feelings award. Although the Tribunal identified conduct potentially capable of being aggravating, it did not make sufficiently clear factual findings, identify increased injury, address causation, or guard against double recovery.
The EAT also held that the sick-pay award had not been properly assessed. There was no finding of a contractual entitlement to full sick pay, and the loss was not properly recoverable as unfair-dismissal compensation. It could potentially be awarded as discrimination compensation, but the Tribunal had not explained why it selected four weeks or assessed the chance that Kaiser would have worked absent the discrimination, both before and after contracting COVID-19.
The EAT therefore remitted both issues to the same Tribunal to decide whether aggravated damages should be awarded and, if so, in what amount, and to recalculate any sick-pay loss using percentage assessments of the relevant chances. The remainder of the award was not disturbed.
Key Takeaways
- Aggravated damages in discrimination cases require proof that an additional aggravating feature caused additional distress; employer misconduct cannot justify a punitive award.
- Tribunals must explain how aggravated damages differ from an ordinary injury-to-feelings award and avoid compensating the same injury twice.
- Past wage loss attributed to discrimination must reflect the assessed chance that the employee would have worked absent the unlawful treatment, including other causes of absence such as illness.
Why It Matters
The judgment provides a focused restatement of the limited role of aggravated damages in employment discrimination cases. A respondent’s status, objectionable conduct, or failure to take a complaint seriously may be relevant, but only if supported by findings that the feature actually intensified the particular claimant’s injury.
The decision also illustrates that even a modest compensation component must rest on a reasoned causal assessment. The EAT additionally noted that an appeal does not itself stay payment: unless another deadline or a stay applies, an Employment Tribunal monetary award must generally be paid within 14 days.