In the case of Base Childrenswear Ltd v Otshudi, the EAT made it clear that employers can face substantial 'injury to feelings' awards, even if the discrimination complained of is a 'one off'.
Three months after starting work, Miss Otshudi was told during a meeting with two senior managers that she was being made redundant. As this discussion had come 'out of the blue' she asked whether that decision was to do with her race. In response, the managers called in a third manager and challenged her to say they were discriminating against her. She started to cry, at which point they told her to collect up her belongings and leave immediately.
She appealed against her dismissal and raised a grievance which they ignored so she brought a race discrimination claim based on her unlawful dismissal. The tribunal accepted that her 'redundancy' was a sham (a point conceded by the employer) and that she had been dismissed because of her race.
It awarded Miss Otshudi's £4,500 for her lost earnings, £16,000 for injury to her feelings, £5,000 for aggravated damages, £3,000 for personal injury, interest of £3,520 and at 25% uplift of £6,880 to reflect the fact that her employer had not followed the ACAS Code of Practice and discipline and grievances.
The employer appealed against the non pecuniary awards. It argued that these were manifestly excessive and that Miss Otshudi had been compensated more than once for the same upset.
Injury to feelings awards have to be within the three Vento bands: most serious, middle and lower. Awards range from £900 at the bottom end to £42,900 for the most serious cases and must compensate the employee, rather than punish the employer.
Miss Otshudi's award of £16,000 was in the middle of the middle band. The EAT said that was appropriate - even though the discrimination (her dismissal) was a "one off". It accepted that Miss Otshudi had been genuinely upset after being dismissed from a job she enjoyed, was good at and had expected to be long term.
She was also entitled to a separate personal injury award because she had been depressed after her dismissal for around three months.
The EAT then reviewed her aggravated damages award of £5,000 which compensated Miss Otshudi for her employers behaviour after her dismissal. The tribunal had criticised the company for failing to deal with her appeal and grievance, falsely arguing that she had been dismissed for redundancy, changing this at the last minute and accusing her of theft and failing to apologise.
The EAT decided to reduce this by £1,000 to reflect the fact that it included an amount to compensate Miss Otshudi for her employer's failure to deal with her appeal and grievance. She had already been given the maximum adjustment for her employer's failure to comply with the Acas Code and couldn't be compensated for this element twice.
- Don't dismiss someone for a reason that isn't true. Here, if the employer had genuinely suspected Miss Otshudi of stealing, it should have investigated, allowed her to answer the charges and reached a reasonable decision based on the evidence before it.
- Don't attempt to intimidate a member of staff who has challenged what you have told them. Sending in reinforcements and crowding the employee is never a 'good look' and you may have to explain why you did so if the employee brings a claim.
- Don't frogmarch an employee from the premises for challenging your version of events or for getting upset. Remember, you must act (and be seen to act) reasonably.
- Make sure your managers have been trained and are comfortable having 'difficult' conversations with staff and have received training on discrimination.