Discrimination Compensation

In another Employment Appeal Tribunal case involving discrimination the amount of compensation awarded to a successful employee was discussed.

The Facts

Ms Ozog was employed by the Cadogan Hotel Partners Ltd (the ‘Employer’) as a waitress for approximately 7 months at one of their hotels in London.

When a new head waiter started working for the Employer he behaved inappropriately to Ms Ozog, at work, including:

• Kissing her arm
• Touching her arms and back
• Asking if she had a boyfriend
• Undoing a button on his trousers, taking off his belt, and approaching Ms Ozog and a colleague saying “Do you want this body? Come on, you are a woman. You should want this body”
• Using threatening and bullying behaviour

Ms Ozog reported the incidence to her Supervisor and HR but no action was taken. Ms Ozog was in fact suspended and questioned about her own performance at work.

Following these allegations of poor performance Ms Ozog resigned and referred to the behaviour of the Head Waiter, which she had previously reported.

She then issued a claim in the Employment Tribunal for unfair dismissal and discrimination.

Because she had not been employed for long enough to claim unfair dismissal her claims were limited to direct sex discrimination and/or harassment on grounds of sex and sexual orientation.

At the original first instance hearing the Employment Tribunal awarded Ozog £10,000 for injury to feelings.

The Employment Tribunal also awarded a full 25% uplift on compensation in accordance with the ACAS code of practice as they concluded that the Employer had failed to investigate Ms Ozog’s grievances about the behaviour, which she had raised orally.

The Employer appealed against the decision to award £10,000 and to increase by 25%.

The Law 

When assessing the value of compensation for injury to feelings in discrimination cases there is no one size fits all, and each case will depend on the facts and ultimately the effect that the discrimination has had on the employee.

Helpfully a case, known as Vento, has established some guidelines for different levels of seriousness; as follows;

 The cases of Da’Bell and Simmons listed refer to increases that have come from cases more recently to increase the compensation to reflect increases in inflation.

If an Employer fails to follow the ACAS code of practice in relevant circumstances, i.e. where an employee raises a grievance and the Employer ignores it the Employment Tribunal can increase compensation by up to 25% for the failure.

The Decision

In analysing the decision of the Employment Tribunal the Employment Appeal Tribunal decided that the Employment Tribunal had in fact focused their attention on the Employers behaviour rather than looking at the effect on Ms Ozog which is the real measure for compensation for injury to feelings.

In reducing the compensation to Ms Ozog the Employment Appeal Tribunal decided that the effect on her had not gone beyond making her feel uncomfortable. They considered that it was actually in the lower Vento band and awarded £6,600.

The Employment Appeal Tribunal also removed an uplift for the Employer’s failure to follow the ACAS code. The Employment Tribunal had wrongly concluded that the employee had raised a valid grievance. Ms Ozog’s grievance was only ever made verbally and therefore she had failed to instigate the ACAS procedure, which would have triggered the Employer’s obligation.

Points to Note

The Employer’s failure to act in this situation was costly for them, even after the Employment Appeal Tribunal adjusted the award.

If an employee raises an allegation with you or your supervisors or managers then action should be taken, without delay to investigate. It is important therefore to ensure that your Supervisors and Managers are aware of their role in helping to prevent these issues arising.

I can offer training and coaching to your senior staff and/or staff who have line management responsibilities to prevent your organisation falling foul of this sort of scenario.

If you would like to discuss your business needs or this case further please do not hesitate to contact me alison@realemploymentlawadvice.co.uk.