In HM Land Registry v McGlue, the EAT overturned the Tribunal’s decision to award £5000 aggravated damages to the Claimant, making clear that there is a high hurdle to reach before such damages will be appropriate in successful discrimination cases.
The purpose of aggravated damages in discrimination cases is to compensate the claimant for any additional mental distress they have suffered due to the way in which the employer carried out the discrimination. It is separate to an injury to feelings award.
This case provides guidance as to when such damages will be appropriate, making clear that conduct which is carried out in an “exceptionally upsetting” way (e.g. “in a high-handed, malicious, insulting or oppressive way”) may attract aggravated damages, as may conduct which is based on unacceptable motives such as prejudice, animosity, spite or vindictiveness. Similarly, an employer’s subsequent conduct (for example where a case is conducted at a trial in an unnecessarily offensive manner) may be sufficient to justify the award of aggravated damages. Otherwise, though, such aggravated damages are unlikely to appropriate, even in cases where the employer’s behaviour merits a relatively high injury to feelings award (£12,000 in this case).