The EAT has held that an employment tribunal’s award of £10,000 for injury to feelings was “manifestly excessive and therefore perverse” in a case concerning an act of pregnancy/maternity discrimination claim that consisted of the employer failing to take adequate steps to deal with a grievance that the claimant had twice emailed but which had been blocked by its firewall in the recent case of Eddie Stobart v Caitlin Graham.
Given the minimal evidence of injury to the claimant it was open to the tribunal to look at the manner of discrimination to test whether it could properly support inferences of secondary fact about that injury.
However, the tribunal’s criticism of the employer was limited to some missed opportunities to ask the claimant about the content of her grievance and to double-check with her why it had not been received.
There was nothing about her case that might indicate humiliation by way of ridicule or disempowerment and therefore the only proper and reasonable conclusion was that the employer’s failure to deal with the claimant’s grievance was limited in its scope and impact.
The EAT substituted an award of £2,000, 80% lower than the original award. It was prepared to infer some additional injury arising from the fact that the claimant was chasing up her grievance at a time when she should have been enjoying her maternity leave.
The EAT stated that the parties can assist the tribunal by giving it more direct evidence of the alleged injury to feelings, the burden being on the claimant to show that his or her feelings have been injured and to what extent.
In this regard, the EAT considered that the following may be helpful to consider:
- the claimant’s description of the injury. Tribunals should be ready to scrutinise apparent stoicism with as much as care as apparent upset; for some individuals, stoicism is the refuge of the inarticulate. Equally, tribunals should take claimants as they find them, considering whether there is any fragility that makes them more vulnerable to upset or means that the experience is more impactful upon them.
- duration of consequences. A claimant’s upset may be fleeting, or it may be long lasting, and much may depend on his or her levels of fortitude and resilience
- effect on past, current and future work. It may be relevant to consider the extent to which the claimant’s self-esteem was bound up in his or her occupational life, which differs from person to person. An evidenced wish to leave an enjoyable and fulfilling line of work due to discriminatory treatment can properly inform the tribunal’s assessment of the hurt caused.
- effect on personal life or quality of life. If a tribunal does consider this, it will be helpful to survey an evidential landscape comparing the claimant’s life before and after the discrimination. A third-party view may, in appropriate cases, be helpful, such as from a family member.
This provides useful guidance for employers and employees as to how injury to feelings claims should be presented in Employment Tribunal claims.
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