Benjamin v The Markfield Project [2022] EAT 167

Appeal against the rejection of the Claimant's application for reconsideration of her remedy award. Cross-appeal against the amount of the injury to feelings award. Appeal allowed in part, cross-appeal dismissed.

The Claimant's claims of constructive dismissal and race and disability discrimination (amongst others) were upheld by the ET. She was awarded compensation and an amount for injury to feelings. In her application to the ET to reconsider its decision on remedy, the Claimant sought to rely on further documentation relating to mitigation and said that her evidence on injury to feelings had been adversely impacted by her disability. The ET rejected the application, holding that the further documentation merely confirmed its original decision; it did not address the points made regarding injury to feelings. The Claimant appealed, complaining the ET had erred: (1) in its approach to mitigation, in particular in relation to her decision to embark upon a course of study; (2) in failing to address injury to feelings. The Respondent cross-appealed, saying: (1) the ET had failed to address its objection that one of the new documents was inconsistent with the Claimant’s evidence at the liability stage; and (2) the award for injury to feelings was too high.

The EAT allowed the appeal in part but rejected the cross-appeal. The Claimant’s first ground of appeal was a challenge to the ET’s original remedy decision and identified no error of law arising from the reconsideration judgment. Even if it had been a point that could be raised by way of application for reconsideration, the Claimant had not asked that the ET reconsider its remedy decision because it had erred in its approach to the question of mitigation and re-training, and the ET had not erred in seeing this as akin to an application to rely on fresh evidence (on which its conclusion could not be challenged). The ET had, however, failed to address the claimant’s reconsideration application in respect of the injury to feelings award. On this issue, the Claimant had identified matters that were either relied on as fresh evidence (that is, as to the impact of the Claimant’s disability on her evidence on injury to feelings) or as going to the fairness of the hearing. It could not be said that these were not matters that might appropriately amount to grounds for reconsideration and the ET had erred in failing to address the application in this respect. As for the cross-appeal, these were not matters that the Respondent had sought to raise by way of application for reconsideration and did not properly arise from the judgment under appeal. In any event, there was no inconsistency in the evidence, as suggested by the first ground of cross-appeal. As for the second ground, this could only relate to the original remedy judgment (from which there was no appeal) but, in any case, did not meet the high threshold required for a perversity challenge.

Published: 16/01/2023 11:41

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