EAT upholds 25% uplift to awards for injury to feelings and aggravated damages

Tuesday 21st December 2021

In Slade and anor v Biggs and ors, the EAT upheld an ETs decision to apply a 25% uplift to awards for injury to feelings and aggravated damages.

The Claimants were employed by A Ltd, which manages properties owned by Sir Benjamin Slade (BS). Mrs Biggs went on maternity leave on 9 September 2017 and Ms Stewart notified BS that she was pregnant with a due date of 12 January 2018. BS considered the Claimants’ pregnancies to be “highly inconvenient” and began orchestrating their departure with the help of Andrew Hamilton (AH). Both Claimants were subjected to a “spurious” TUPE transfer and were not paid statutory maternity pay. Mrs Biggs’ grievance was ignored and she subsequently resigned. Ms Stewart was dismissed for gross misconduct. To avoid liability for maternity pay, the dismissal was backdated to the day before she gave birth prematurely. The ET considered the disciplinary process was a sham.

Both Claimants brought several successful claims against A Ltd, BS and AH, including unfair dismissal and maternity discrimination. The ET awarded unfair dismissal compensation of £23,243.50 to Mrs Biggs and £41,375.32 to Ms Stewart, which included a 25% uplift for failure to comply with the ACAS Code. Additionally, the ET made injury to feelings awards of £20,000 and £25,200 respectively and awarded aggravated damages of £5,000, both uplifted by 25%.

On appeal it was argued that the uplifts produced an amount that was too high to be proportionate or acceptable and that there was “double-counting” between the injury to feelings and aggravated damages awards and the 25% uplift applied to them.

The EAT did not consider there was any obvious or significant double-counting. The EAT highlighted that it should not be assumed that in every case aggravated damages and injury to feelings operate in the same territory as a 25% uplift for non-compliance with the ACAS Code. The ET’s focus was primarily on the injury to feelings demonstrated in the Claimants’ evidence and the “course of conduct” which flowed from the decision to engineer their departures, described as “spurious” and “vindictive”.

The EAT also held that in monetary terms the awards were not too high. While wholly disproportionate sums must be reduced, this was not inevitably the case for larger amounts, as this would introduce an element of capping not required by statute. The EAT highlighted that there must be cases where the maximum 25% is applied, as this reflects the range set by Parliament. The ET’s discretion is very broad and while 25% should only apply to the most serious cases, there is no requirement that such cases be classified as exceptional.

The EAT suggested that ETs should apply a four-stage test, which includes checking for double-counting and applying a “final sense-check” for proportionality.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.