Labour & European Law Review Weekly Issue 488 22 September 2016
Tribunals have to make awards for injury to feelings based on guidelines following case law including Vento v Chief Constable of West Yorkshire Police. According to the Employment Appeal Tribunal (EAT) in AA Solicitors Ltd and Ali v Majid it is not excessive for a tribunal to award compensation above the middle of the Vento band in a situation where an employer violated the dignity of a worker by sexually harassing her.
Ms Majid, a legal practice course student and aspiring lawyer, began working for AA Solicitors. However, about six weeks later she was made redundant.
She brought claims of sex discrimination and harassment alleging that Mr Ali had committed around 40 or more acts of sexual harassment against her, ranging from asking her to go out to the cinema, talking about installing a bed in one of the rooms at the office, attempting to hug her, touching her arms, squeezing and rubbing her hands when shaking hands and generally making her feel uncomfortable.
The tribunal judge found in Ms Majid’s favour with regard to most of her claims. It held that the redundancy was not genuine - someone else with less experience was retained and there had been no complaints about her work. In addition, she was a young woman at the start of her career while Mr Ali was an older man with power and authority and a high degree of control over employees. There was also evidence that she had visited her GP complaining of stress and anxiety because of the harassment.
Given these factors, the judge awarded Ms Majid £14,000 for injury to feelings, among other things, on the basis that the case fell within the middle of the Vento band.
Mr Ali appealed against the award of £14,000 arguing that it was “manifestly excessive”, when set against awards found in personal injury cases. In addition, he argued that his behaviour could better be described as “gauche and insinuating” rather than “aggressive” and did not last long.
Dismissing Mr Ali’s argument that this was a case merely of persistent unwanted attentions but without serious physical contact, the EAT agreed with the tribunal that his conduct had violated her dignity as a worker. He had treated Ms Majid in a demeaning and disrespectful manner and as someone who was only present in the office for his pleasure and gratification rather than to work and develop her skills as a lawyer. When she politely rejected his advances, he turned nasty and dismissed her.
In terms of compensation, the EAT held that the reasonable person in the street would “regard the law as deficient if it did not mark such conduct with awards that recognise how humiliating it is for a worker to lose her job because she is not willing to play a sexually charged role allotted to her by her employer”. The award for injury to feelings properly included an element for loss of her job and her feelings of hurt and humiliation.
Although the award was above the middle of the Vento band, it was not at the upper limit. Whilst it could be characterized as being on the high side, it was not so excessive that it would justify interference by the EAT. The comparison made by Mr Ali with personal injury claims was not appropriate as the Vento guidelines represent bespoke guidance for this particular jurisdiction and this particular type of statutory wrong which (as in this case) involved deliberate rather than merely negligent acts.
This case is an illustration that it can be difficult for an employer to challenge an injury to feelings award made in a discrimination case unless the award is manifestly excessive. On the facts of this case the EAT found that the award was not excessive and therefore the employer’s appeal was unsuccessful.