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21-05-2013

As well as compensation for loss of income etc in a discrimination claim, the tribunal may award compensation for injury to feelings. The amount of compensation awarded for injury to feelings can range from a few hundred pounds to £30,000, although awards at the top end of the scale are rarer.

Compensation in discrimination cases can be substantial, even for those on relatively modest wages. In HMLR v McGlue, the EAT considered the case of a woman on a career break (from which she could return at any time on short notice) who claimed that she was indirectly discriminated against when her employer, who wanted to reduce headcount, offered generous early retirement schemes to all its staff but then decided without any notice to exclude those on a career break who were not due to return before a set date.

The Employer then compounded matters by telling her she would still be considered for the scheme when she would not, and then by wrongly rejecting her grievance. The conclusion which the Tribunal came to at the remedies hearing was that Mrs McGlue was entitled to an award of compensation for injury to feelings of £12,000, an aggravated award of a further £5,000 and a compensatory award of £71,710.95 to reflect her loss in not being allowed to take early retirement.

It should be noted that Mrs McGlue had remained in employment throughout. She worked an average of 16 hours a week and was paid around £13,000 per annum. Her evidence was that she would have taken the severance payment if offered and then sought similar work elsewhere.

The EAT held:

  1. As a matter of principle awards made by a Tribunal in respect of injury to feelings will not be interfered with unless they are manifestly excessive or wrong in principle.
  2. In relation to the compensatory payment, the principle which is to be adopted is that the victim of a wrong is to be placed financially in the position in which she would have been had the wrong not been committed. If the wrong here had not been committed, she would have been eligible for the early retirement scheme and would have been £71,000 better off. That therefore was the starting point and the award was upheld.
  3. The appeal on the issue of aggravated damages was allowed, because the Tribunal had already taken the same conduct into account when assessing the award for injury to feelings. So here the employer successfully argued that an award should be reduced by £5,000.

Unfortunately its legal costs were likely to have been several times that amount.

Sarah Rushton

Sarah Rushton is an employment partner at Moon Beever.

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information. 

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