Employment Law Speed Read – 28/05/19
28th May, 2019
In the case of Base Childrenswear Ltd v Otshudi the Employment Appeal Tribunal (EAT) considered whether the award for a one-off act of harassment could fall within the middle Vento band.
The Claimant was employed by Base Childrenswear Ltd (Base) as an in-house photographer, for just over 3 months in early 2016. The Claimant was dismissed in May 2016 and was told that she was being made redundant. This was later found out to be untrue.
At the time, the Claimant questioned why she was being dismissed and whether it was to do with her race. Three of the Respondent’s senior managers were present in the dismissal meeting and when the Claimant began to cry she was told to collect her belongings and leave immediately. The Claimant complained of seven acts of racial harassment.
The Employment Tribunal (ET) dismissed six of the Claimant’s seven claims for racial harassment on the basis that they had been brought out of time. The ET however upheld the Claimant’s complaint of racial harassment relating to her dismissal. The ET was satisfied that the Claimant’s dismissal amounted to unwanted conduct and the way the decision was communicated was intimidatory. They also found that there was a racial element that had caused, or contributed to, her dismissal.
The ET made awards for injury to feelings, loss of earnings, interest, aggravated damages and personal injury. The Claimant was also awarded a 25% uplift for the Respondent’s failure to comply with the ACAS code. The injury to feelings award was placed within the middle bracket of Vento, at £16,000.
Employment Appeal Tribunal
Base appealed on the basis that the awards made were “manifestly excessive” and argued that the injury to feelings award was made in the wrong Vento band in circumstances where it was a one-off act of discrimination.
The EAT held that the ET’s finding that the unlawful discrimination related to an isolated event, did not mean that it was required to assess the award for injury to feelings as falling within the lowest Vento bracket.
The EAT held that the Vento bands were not prescriptive and an award for injury to feelings was fact sensitive. Whilst a consideration of whether an act was a one-off, or amounted to a course of conduct is relevant – it is not determinative. The EAT stated that the question must always be what is the particular effect on the individual complainant.
Base’s appeal was allowed in part as the EAT held that there had been an element of double-counting in terms of the aggravated damages awarded and reduced this by £1,000.
This decision is not a surprising one, but a helpful reminder of the assessment of damages that can be awarded by an ET, particularly the factors that an ET will consider when deciding on the appropriate Vento band.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.