When considering remedies, there are a number of different awards and factors which an Employment Tribunal will consider. EJ Norris, in a case heard in Central London ET last year, covered a great number of these in a case which led to a very high award for the Claimant.
Factual background to Koffi v Permanent Representation of Cote d’Ivoire to International Commodity Organisations
The Claimant was employed by the Respondent between 2014-2019. She brought a claim in the ET alleging unfair dismissal, including allegations of sexual harassment by her manager. When she told her manager, in late 2018, she was not interested in her sexual advances, he threatened that if she said anything about it, she would be “done”. Early the following year, she was told by that same manager that she would be dismissed if she continued to refuse his advances. Her manager, according to the Claimant, physically threatened her into signing for receipt of the letter dismissing her, before propositioning her once again.
The Claimant asserted that no procedure was followed at all in dismissing her and she was given no right of appeal, and as such was dismissed unfairly. She also asserted that her treatment constituted direct discrimination and/or harassment.
Throughout the entire claim, neither representation nor submissions, either written or oral, were presented on behalf of the Respondent. The tribunal sent an Unless Order (an order warning that if no response is received, judgment will be entered in default) to the Respondent, but no response was received.
As such, a default judgment was entered. The schedule of loss sought compensation of £131,444.65. As this was such a high sum, EJ Norris considered it inappropriate to award it without having heard from the Claimant in person.
The Claimant was asked about her applications for alternative employment. This is because a Claimant has a duty to mitigate their losses. Her evidence was that she had been attending a job centre and applying for jobs in education, a field in which she had experience. The onus, in relation to seeking new work, is on the Respondent to show that the Claimant had behaved unreasonably, not on the Claimant to show she had been reasonable. As there were no representations from the Respondent, the Claimant’s evidence was accepted.
Injury to feelings
The Claimant had made a claim of £27,000 for injury to feelings. The case in which the first bands for injury to feelings were set out was Vento v Chief Constable of West Yorkshire, and so they are accordingly known as the Vento bands. These bands are regularly updated, but at the time of the calculation, the relevant bands were:
- £900-£8,800 for the lower band
- £8,800-£26,300 for the middle band
- £26,300-£44,000 for the upper band
- £44,000+ only for exceptional cases
The lower band is reserved for one-off/isolated incidents. The middle band is for more serious, but which don’t merit an upper band award. The upper band is reserved for maintained instances of discriminatory behaviour.
In this case, the Claimant had been subject to this treatment from the Respondent for a year, persistently. It had led to her dismissal, and had an enduring effect on her self-confidence. She had, however, been able to self-medicate with an over-the-counter drug which described itself as suitable for mild anxiety or sleep disturbance. As such, EJ Norris considered that a middle band award was appropriate, and squarely in the middle of that band, at £17,750. The usual 10% uplift took that award to £19,305.
Basic and compensatory award
The basic award is calculated by reference to a Claimant’s time at a job. In this instance, that was four years, which is multiplied by a week’s pay (capped at £508). There is then a multiplier of 1.5, based on the Claimant’s age being over 41 for all of her years of service. As such, the basic award was £3,048.
The compensatory award is designed to address the Claimant’s losses post-dismissal. Some of these will be standard across many cases: for example, as in this case, the loss of a long notice period will lead to a claim of a week’s pay, and £500 for a loss of statutory rights (the fact that it will take two years to accrue the statutory rights to claim unfair dismissal in any new employment). The total compensatory award was £61,880.92. This is offset slightly by the amount paid to her when she was dismissed by the Respondent, which took the sum to £41,127.92.
Loss of earnings
As mentioned above, the Claimant was actively seeking work, and estimated that she would likely be able to mitigate her loss within six months of the remedy hearing. She therefore sought £20,820.02 for future losses, which was increased by £1,887.92 in relation to the shortfall of past loss.
When everything was added up, and interest applied to the relevant award figures, the total the Respondent was ordered to pay to the Claimant was £101,853.07.
It is well worth noting that, in many paragraphs of the judgment, EJ Norris makes reference to the fact that he was accepting the Claimant’s evidence being accepted as it was unchallenged. Though we cannot know for sure, it is likely that, had the Respondent engaged in the tribunal process and submitted a defence, or been represented or present in any way at the proceedings, the award may have been significantly less.