By Jim Stephenson, Lawyer
Background
The appeal was against a remedy judgment of an Employment Judge at a remedy hearing in June and July 2024. The Employment Tribunal had found in favour of the claimant in complaints of unfair dismissal, disability discrimination and sex related harassment.
The respondent was a firm of solicitors. The claimant worked for the respondent from 1 April 2019 to 2 February 2021. Towards the end of her employment, the claimant had a period of sickness related absences. The Employment Tribunal held that a refusal to provide training and the dismissal of the claimant constituted discrimination because of something arising in consequence of disability. The Employment Tribunal found that the respondent had failed to make reasonable adjustments by not providing the claimant with a larger screen and/or screen protector and an ergonomic chair or a cushion. The Employment Tribunal held that the claimant had been subject to sex related harassment when she was told that if she did not wear a scarf, she might find it easier to attract men. The Employment Tribunal found that the claimant had been automatically unfairly dismissed for asserting a statutory right to be paid.
The Employment Tribunal made an award of injury to feelings of £25,000 and explained its reasons including that in terms of hurt feelings, the Claimant inevitably suffered a sense of injury to herself and her sense of wellbeing and suffered from a deterioration in her mental health, as a result of the discrimination and the discriminatory dismissal. As a result of the treatment and her experiences at the Respondent, she has given up her dream of becoming a solicitor.
The Employment Tribunal went on to make an award of aggravated damages in the sum of £5,000 and gave the following reasons:
- The most serious aggravating factor here was that the discriminator was a firm of solicitors. This was a business that represents and advises members of the public on employment law issues.
- The Claimant was discriminated and harassed against by the Respondent’s practice manager/consultant and therefore a person with some influence and power within the business
- All the Claimant’s complaints were treated in a trivial way. There had been no information given to the Tribunal on what steps had been taken to address the treatment of the Claimant or whether there had been an investigation.
- Lastly, it was the senior partner in the Respondent, Mr Khan, a solicitor, who decided to terminate the Claimant’s employment when she told him that she had just been diagnosed with another health condition.
The respondent was permitted to appeal against two aspects on the remedy judgment. The first was an award for aggravated damages in the sum of £5,000; the second an award of compensation for the difference between statutory sick pay and full pay for part of a period of sickness absence, in the sum of £672.56, a very small part of the total sum of £109,020.64 that was awarded to the claimant.
Outcome
An award of aggravated damages can be made where a discrimination complaint is upheld. However, the circumstances in which it is appropriate to award aggravated damages are limited because it is necessary that there be an additional aggravating factor, or additional aggravating factors, that go beyond those already compensated for by an award for injury to feelings; and that the additional aggravating factor or factors have caused increased injury to that already compensated for by an award of injury to feelings. Aggravated damages are a type of award for injury to feelings and so must compensate for something in addition to that already compensated for by a conventional award for injury to feelings. The additional aggravating factor must have caused the increased injury; the causation requirement.
The EAT allowed the appeal in that:
The “most serious aggravating factor here was that the discriminator was a firm of solicitors” and it was a “business that represents and advises members of the public on employment law issues”. This appears to be no more than the Employment Tribunal expressing its displeasure that a firm of solicitors should have treated an employee so badly. It sounds punitive, which is not a permissible basis to award aggravated damages.
The Employment Tribunal did not adequately explain why it made an award of aggravated damages. The circumstances in which aggravated damages can be awarded were considered.
The award for the difference between statutory sick pay and full pay
The EAT also found errors in the award relating to sickness absence. Although the tribunal had concluded that discrimination contributed to the claimant's absence from work, it had not adequately explained how it calculated compensation for lost earnings during that period. The matter was remitted for a fresh assessment.
The Employment Tribunal held the Claimant was entitled to full pay for the period she was off sick. It was unlikely that the Claimant would have been off sick if the Respondent had complied with its duty to make reasonable adjustments. The Claimant had been able to work with her disabilities so it was unlikely that on their own they would have caused her to be off sick. It was likely that the Claimant would have been off with COVID even if the Respondent had treated her well, paid her wages in full and on time and made the necessary adjustments. The Claimant was only paid SSP during the time that she was off sick. The Tribunal awarded the Claimant the difference between SSP and her full wage for 4 weeks. £168.14 x 4 = £672.56.
The EAT’s analysis was that there was no finding, and there appears to have been no basis for a finding, that there was a contractual right to full pay while absent from work for sickness or that there was any basis for the difference between SSP and full pay being awarded as compensation for unfair dismissal. The reasoning of the Employment Tribunal appears to have been that the loss resulted from the discriminatory treatment of the claimant. This could form part of an award of compensation for unlawful discrimination, but there was no explanation of why the sum was calculated as the difference between SSP and full net pay for a period of four weeks.
The EAT held the Employment Tribunal should assess the chance that the claimant would have been at work prior to contracting Covid, absent the respondent’s discrimination, and award that percentage of the difference between her full net pay and SSP for that period; and then for the period post the claimant contracting Covid assess any chance that the claimant would have been at work having contracted Covid, absent the respondent’s discrimination, and then award that percentage of the difference between her full net pay and SSP for that further period.
Comments / Key takeaways
Tribunals must identify not only aggravating conduct by an employer, but also the additional injury caused by that conduct. A respondent's status, reputation or professional standing alone will not justify an aggravated damages award if the reasoning appears punitive rather than compensatory. The ultimate question is “what additional distress was caused to this particular claimant, in the particular circumstances of this case, by the aggravating feature(s) in question?”
Often, there may be much to be said for making a single award for injury to feelings, stating that account has been taken of any identified aggravating features, because this can avoid the risk of double counting.
For trade unions and workplace representatives, the ruling highlights the importance of gathering clear evidence of both the impact of discriminatory conduct and any additional harm caused by the way an employer responds to complaints. Where aggravated damages are sought, claimants will need to demonstrate not just objectionable conduct, but how that conduct heightened the injury already caused by the discrimination itself. The claimant must ensure that these factors are additional to what had already been claimed for in the award for injury to feelings.
The decision also reinforces the need for careful assessment of financial losses flowing from discrimination. Where illness or absence is linked to discriminatory treatment, tribunals must explain how compensation has been calculated and how causation has been assessed.
Khans Solicitors v Kaiser [2026] EAT 137.