Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In the case Base Childrenswear Ltd v Otshudi UKEAT/0267/18/JOJ , the Employment Appeal Tribunal (the “EAT”) held that the Employment Tribunal (the “ET”) had double counted when they failed to reduce an aggravated damages award after deciding to also award an uplift for a failure to follow the Acas Code.

The facts in Base Childrenswear Ltd v Otshudi

Miss Otshudi (the ‘Claimant’) worked for Base Childrenswear Limited (the ‘Respondent”) as an in-house photographer.  In May 2016 the Respondent’s Managing Director told the Claimant that she was being made redundant after only three months of employment. The Claimant challenged this in a meeting, asking if the real reason she was being dismissed was due to her race (she had already made a complaint about harassment from colleagues). At the meeting the Managing Director and two other managers surrounded the Claimant and feeling intimidated and upset she began to cry. She was then told to collect her belongings and leave.

The Claimant appealed the decision to dismiss her and submitted a grievance. Both were ignored by the Respondent.  She commenced the Acas early conciliation process, but the Respondent refused to engage in it. The Claimant went on to bring a claim for race discrimination in respect of a series of discriminatory acts throughout her employment with the Respondent and for her dismissal and subsequent treatment. 

The decision of the Employment Tribunal

At the ET, the Respondent began its defence by maintaining that the reason for the Claimant’s dismissal was redundancy.  They then went on to argue that, in fact, she was dismissed for stealing.  However, the theft  allegation was unproven, and the ET determined that there were facts from which it could infer discrimination. These included the employer’s failure to respond to the grievance and its dishonest approach in defending the claims by arguing there was a genuine redundancy situation and then subsequently putting forward to the ET another unfounded reason for the dismissal.

The ET went on to dismiss the Claimant’s claim in respect of the six acts of racial harassment that occurred during the course of her employment as they were out of time.  They did uphold her complaint of racial harassment in respect of her dismissal.

At a remedies hearing the ET awarded the Claimant £16,000 for injury to feelings(in the middle Vento band).  She was awarded £5,000 for aggravated damagesto reflect the Respondent’s failure to respond to her grievance and appeal, its subsequent conduct of the litigation and its failure to apologise.  Her personal injuryaward was£3,000 to reflect the fact that the Claimant had suffered medical depression for three months. They also awarded an uplift of 25% for the Respondent’s breach of the ACAS Code given its failure to respond to the Claimant’s grievance and appeal.

Her employer appealed arguing that the awards made were manifestly excessive, that, although serious, the dismissal was a one-off event and accordingly the injury to feelings award should have been placed in the lower Vento band.  They also argued that the personal injury award failed to take into account the Claimant’s other complaints of discrimination (for which it had not been found liable) and the ET had double-counted by making an award in respect of the failure to respond to the grievance and appeal in both the aggravated damages award and the ACAS uplift.  There was no appeal against the 25% uplift.

The decision of the Employment Appeal Tribunal

The appeal was, in the most part, dismissed.

The EAT held in respect of the injury to feelings award, the fact that the discrimination was a one-off act did not limit the ET to making an award in the lowest Vento bracket. The bands are not prescriptive and such awards are fact specific. Whether the discrimination was a one-off act, or a course of conduct was a relevant factor but was not determinative.

As regards to the aggravated damages and the ACAS uplift, the appeal was allowed in part. The ET had taken into account the Respondent’s failure to follow the ACAS code in respect of the grievance when making both the aggravated damages award andthe 25% uplift. The EAT said that when then the ET decided that the Respondent’s failure to deal with the Claimant’s grievance justified a 25% uplift, it should have revisited the aggravated damages award and removed that factor from its consideration under that head – to avoid double counting.

The EAT went on to reduce the aggravated damages award should by £1,000.

Our solicitors’ views on the case of Base Childrenswear Ltd v Otshudi UKEAT/0267/18/JOJ)

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comments on the case: “This case reinforces the point that Employment Tribunals are willing to penalise employers who fail to follow the ACAS Code of practice and where it is a discrimination claim, the financial penalty can be particularly significant.  It is also important to remember that, even when an employee does not have two years’ service, it is always best practice to follow the Code due to the numerous claim’s employees can make even without two years’ service.  Finally, and importantly, in this case the EAT confirmed that just because a Claimant has experienced a single incident of discrimination, does not mean that their injury to feeling award will automatically fall into the lower Vento band.’

The decision of the Employment Appeal Tribunal in Base Childrenswear Ltd v Otshudi UKEAT/0267/18/JOJ can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

124 Reviews

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 3 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 5 months ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

Posted 5 months ago

Anonymous

Very pleasant and quick to deal with. Mnay thanks.

Posted 5 months ago

Anonymous

Easy to get hold of. Quick.

Posted 5 months ago

Owen J

Very helpful, efficient service.

Posted 5 months ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 6 months ago

Kulbir S

Amazing, quick friendly service from Chris from the start and Caroline. They made me feel at ease during a difficult time, they understood and advised accordingly and I am really happy with the outcome of my case. Will always advise anyone who needs legal advice to contact Redmans, I’m so glad that I did and can confidently say I don’t think any other firm could have handled my case any better. Well done guys, wish you all the best and please keep doing what your doing, simply the best!

Posted 6 months ago

Mark A

Excellent service - rapid and “to the point” advice given to ensure meeting the target time frame

Posted 6 months ago

Anonymous

Chris Hadrill kept me sane during the negotiations with my employer. He was courteous professional and he cared about doing the best he could for me. I will use Redmans again if ever I need an employment solicitor. Excellent service.

Posted 6 months ago

Muhammad Z

Awesome services. Professionals at their best .

Posted 6 months ago

Anonymous

Thanks for the advice and for negotiating a good outcome. Good to have the support at a very stressful time

Posted 6 months ago

Chloe F

My solicitor at Redmans was very helpful and efficient. Really pleased with the smooth service.

Posted 6 months ago

Anonymous

Chris was absolutely excellent. Clear and concise, offering sound advice.

Posted 6 months ago

Tim O

Experienced and competent advisors

Posted 6 months ago

Rachel A

Quick and expert assistance. I would highly recommend Chris for any of your legal needs.

Posted 6 months ago

Joe S

I was very happy with the service provided by Chris and the team at Redmans Solicitors. I felt very comfortable discussing all matters with Chris and am very grateful for all the help and guidance I was given throughout the whole process. I would definitely recommend Redmans Solicitors to friends and family!

Posted 6 months ago

Anonymous

I had a very good experience working with Chris Hadrill during a difficult and emotional time. This held true from the moment I spoke to him on the phone, to the end of the process. Overall, he was attentive, professional and highly supportive. He provided sound advice and clarity. It was the reviews that led me to Redmans! I was very happy to know they were all true. I highly recommend working with Redmans Solicitors. Thank-you to the entire team!

Posted 6 months ago

Anonymous

Good service

Posted 6 months ago

Anonymous

Excellent professional service. Highly recommend.

Posted 6 months ago

Rob O

Very prompt response and I could not fault the service. My solicitor listened carefully to the details of my case and I felt very confident in the advice I was offered. All emails and work done on my behalf with my former employer was of the highest standard and Redmans helped take a lot of the stress out of the situation for me.

Posted 7 months ago