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Discrimination Awards: Contributory Negligence

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Can an award for injury to feelings in a discrimination case be reduced because of contributory negligence?

Rarely, and not on the facts of this case, held the EAT in First Greater Western Limited & Linley v Waiyego.

The Claimant brought a number of discrimination claims against her employer of which two succeeded; a claim for failure to make reasonable adjustments and a claim for discrimination arising from disability.

The tribunal awarded the Claimant £19,800 for injury to feelings in respect of the first claim and £8,800 for injury to feelings arising from the second claim. Both sides appealed.

On the issue of contributory fault, the EAT expressed concern that the non-binding observation in Way v Crouch that discrimination claims were subject to contributory negligence was too broad.

The EAT held that while s.1(1) of the Law Reform (Contributory Negligence) Act 1945 can apply to some discrimination claims under the Equality Act 2010, such cases will rarely if ever arise, not least because of the difficulty in identifying or attributing ‘fault’ to a victim of discrimination.

Rather, the EAT held, where such issues arise, it may be more appropriate to treat them as examples of failure to mitigate loss.

Thanks to Richard Wayman of Pump Court Chambers for preparing this case summary.