Base Childrenswear Ltd v Otshudi UKEAT/0267/18/JOJ

Appeal against the ET’s award of non-pecuniary damages payable to the Claimant in a race discrimination case. Appeal allowed in part.

The Claimant was dismissed after only three months' employment with the Respondent. She had complained of six acts of racial harassment during the course of that employment. Those complaints were dismissed by the ET on the basis that they had been brought out of time; however, the ET upheld the Claimant's further complaint of racial harassment in respect of her dismissal, and made awards for non-pecuniary losses under the headings of injury to feelings, aggravated damages and personal injury, plus an ACAS uplift in respect of the Respondent's failure to comply with the ACAS Code.

The Respondent appealed on the following grounds: (1) the ET had placed the injury to feelings award in the wrong Vento band; (2) no account had been taken of the overlap between awards for non-pecuniary losses; (3) sums awarded for injury to feelings and aggravated damages included compensation for matters compensated by the ACAS uplift, such that the combined awards made under those heads contained an element of double- or even treble-counting; (4) the total award for non-pecuniary losses was manifestly excessive; and (5) the ET had taken into account matters that were irrelevant.

The EAT held that the appeal failed on all grounds, except that the ET had considered the Respondent's failure to respond to the Claimant's grievance under the head of aggravated damages and also as justifying an ACAS uplift; accordingly, with the agreement of both parties, the award for aggravated damages would be reduced by £1,000, thereby avoiding the need to remit the question to the ET.

Published: 17/05/2019 17:08

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