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Injury to Feelings & Aggravated Damages

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[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

How should tribunals approach injury to feelings and aggravated damages in discrimination cases?

The principles were discussed by the EAT in HM Land Registry v McGlue

Mrs McGlue was on a career break following maternity leave, from which she could return at any time on short notice.  In order to achieve reductions in head count and cost the employer set up a voluntary severance scheme.  Mrs McGlue applied.

Management then unilaterally decided to exclude all those who were on a career break.  This decision was not published and was not subject to consultation with employees or trade unions.  Mrs McGlue was also misled into thinking that she still remained eligible for this scheme and that her application would be considered in due course.  She was turned down.  Her grievance took 7 months to resolve before it was dismissed.

She succeeded before the employment tribunal in her claim for indirect sex discrimination.  She was awarded compensation which included injury to feelings at £12,000 and an aggravated award of a further £5,000. 

The employer appealed, arguing, amongst other things, that the award for injury to feelings was too high.  The EAT noted however that the award made was at the midpoint of the middle range on the Vento scale.  Awards in respect of injury to feelings, said the EAT, were not susceptible of close calculation and would not be interfered with unless they were "manifestly excessive" or "wrong in principle".  Here the tribunal had used its experience properly to assess the effect of the conduct on the Claimant.

However, in the opinion of the EAT, additional aggravated damages were not appropriate.  They should be awarded, as a rule, if the act is done in an exceptionally upsetting way, or for a bad motive, or was aggravated by subsequent conduct, for example at trial.  The EAT held that in this case the facts did not meet those conditions.