Photographer Subjected to Racial Harassment Wins Substantial Damages
If you have been ill-treated at work, Employment Tribunals (ETs) have the power to award damages against your employer and to compensate you for the indignity or injury to feelings you have suffered. In one case, a hard-working photographer who was sacked out of the blue in intimidating circumstances that amounted to racial harassment was awarded more than £30,000 in damages (Base Childrenswear Limited v Otshudi).
The woman invested much in terms of time and money in her career and reasonably believed her job to be long term. She was, however, reduced to tears after being confronted by two managers without warning and dismissed on the spot. She was at first informed that she was being made redundant – which an ET found to be an obvious lie – before being accused, without foundation, of stealing stock.
After upholding her complaint of racial harassment in respect of her dismissal, the ET awarded her £16,000 for injury to her feelings, an award in the middle 'Vento' band, and £5,000 in aggravated damages – reflecting, amongst other things, her employer's failure to apologise. She also won £3,000 for her personal injury after her dismissal triggered depression. The total award, including £3,520 in interest, was uplifted by 25 per cent due to the employer's failure to comply with the Advisory, Conciliation and Arbitration Service Code of Practice on disciplinary and grievance procedures.
The employer appealed on the basis that the awards made were manifestly excessive. In ruling on that challenge, the Employment Appeal Tribunal (EAT) rejected the argument that the award for injury to feelings had been made in the wrong Vento band given that it related to a one-off act of discrimination. Although the award related to an isolated incident, the assessment must be fact- and case-specific and take into account the effect on the individual claimant. A one-off act of discrimination might well justify an award falling within the middle or higher Vento bands. In this case, the circumstances of the woman's dismissal and the element of managerial intimidation had left her genuinely aggrieved. Furthermore, The ET had been satisfied that the initial injury to feelings the woman had suffered had subsequently been aggravated by the employer's conduct.
Whilst dismissing the argument that the overall award was excessive, the EAT did accept that there was an element of double counting in the aggravated damages award and reduced it by £1,000. That would also require a modest downward adjustment in interest payable and the 25 per cent uplift. The employer's appeal was, however, in all other respects rejected.