A recent Employment Appeal Tribunal (EAT) case of HM Land Registry v McGlue EAT/0435/11 has provided much needed guidance on how remedies for discrimination claims, including injury to feelings and aggravated damages should be calculated.
The case of HM Land Registry v McGlue was brought about due to the claimant, Mrs McGlue, commenced a career break following a period of maternity leave in March 2008. The career break was approved by her employer HM Land Registry and was to continue for up to five years. It was agreed that a reasonable notice period of about one month, could apply to Mrs McGlue being allowed to return to her pre-existing work and that she would be entitled to do so. In December 2008, HM Land Registry announced that there was a need for a reduction in staff numbers due to financial constraints. An early release scheme was introduced to encourage staff to volunteer for severance. Mrs McGlue expressed her interest in the scheme. However, once it had received applications of interest from staff, the senior management team decided unilaterally, that it should exclude from consideration for early release any employee who was on a career break, and who was not due to return to work until after 31 March 2010.
This decision was not published or consulted on with the employees or relevant trade union. Mrs McGlue was therefore misled by HM Land Registry when they advised her that she was eligible for the scheme. Mrs McGlue was not selected for the scheme despite submitting a grievance about her non-selection.
Mrs McGlue brought a claim in the employment tribunal for indirect sex discrimination on the basis that more women than men were likely to be on a career break and therefore suffer the disadvantage of exclusion from the severance scheme. The tribunal upheld the claim and awarded Mrs McGlue £12,000 for injury to feelings, £5,000 aggravated damages and a compensatory award of £71,710.95, which was based on the sum that she would have received had she successfully applied for voluntary severance.
HM Land Registry appealed the amount of compensation to the EAT, in particular that the award for injury to feelings was too high.
The EAT noted that it should not interfere with an award for injury to feelings unless it is manifestly excessive or wrong in principle. The EAT held that in determining the amount of an injury to feelings award, the tribunal must use its experience to assess the effect on the employee affected. In this case, the EAT held that it could not properly interfere with the injury to feelings award. However, the EAT upheld the appeal relating to the award for aggravated damages. The EAT noted that an award for aggravated damages is appropriate where the distress caused by an act of discrimination is made worse by any of the following three categories:
- it being done in an upsetting way, for example where it is done in a “high-handed, malicious, insulting or oppressive way”(Broome v Cassell  AC 1027);
- motive, for example conduct based on prejudice, animosity, spite or vindictiveness; or
- subsequent conduct, for example where a case is conducted at a trial in an unnecessarily offensive manner, or a serious complaint is not taken seriously, or there has been a failure to apologise (HM Prison Service v Salmon  IRLR 425 EAT and British Telecommunications plc v Reid  IRLR 327 CA).
The EAT held that the facts of this case did not meet the circumstances that are set out in any of the three categories. As a result of this case the EAT sent out a strong message to warn tribunals to take care not to award damages under the heading “injury to feelings” for the same conduct as they also compensate under the heading “aggravated damages”. Tribunals must recognise that aggravated damages are not punitive and are not dependent “upon any sense of outrage by a tribunal as to the conduct which has occurred”.
The EAT dismissed the appeal relating to the compensatory award, holding that on the findings of fact by the tribunal, Mrs McGlue would have been selected for the voluntary scheme and would have been £71,000 better off.
As a result of the recent case, the message to employers is that they should bear in mind the circumstances which may lead to an award of aggravated damages and to take particular care to avoid causing further offence to a successful claimant at a remedy hearing, otherwise they will run the risk of a high amount of compensation they will be required to pay to their former employee.