Ministry of Defence v Fletcher UKEAT/0044/09

The Employment Appeal Tribunal has upheld claims brought by Ms Fletcher against the Ministry of Defence for sex discrimination. During her service with the Army, she was subjected to direct discrimination and harassment and victimised following appallingly inappropriate behaviour by her superior. The Tribunal awarded Ms Fletcher compensation for pecuniary losses, £30,000 for injury to feelings, £20,000 aggravated damages, £50,000 exemplary damages and £10,000 in respect of costs. The Tribunal considered the behaviour towards Ms Fletcher had been high handed, oppressive and unconstitutional. The MOD appealed alleging that the claim did not warrant an award of aggravated damages, there was an element of double recovery arguing whether the Tribunal had had proper regard to the totality and proportionality of the awards for non pecuniary loss. In other words, were the awards perversely high?

The EAT reduced the aggravated damages award from £20,000 to £8,000 and set aside the award of exemplary damages in its entirety. These types of awards are rare and the Appeal Tribunal found that the Tribunal had not been entitled to make an award of exemplary damages. Although the Army’s failures were oppressive, arbitrary and unconstitutional these were not sufficient to warrant an award of exemplary damages.

In the light of the authorities the EAT held that it would have awarded Ms Fletcher no more than £7,500 had it been possible to award such exemplary damages.

Key point: Total damage awards in discrimination claims should be proportionate taking into account for example the value in every day life of the amount of money in issue.