£10,000 “manifestly excessive” injury to feelings award reduced on appeal

The Employment Appeal Tribunal has ruled that an employment tribunal’s £10,000 for injury to feelings award for pregnancy / maternity discrimination was manifestly excessive. The only act of pregnancy / maternity discrimination found by the employment tribunal was that the employer had failed to take adequate steps to deal with a grievance which the employee had twice emailed to it but which had been blocked by its firewall. As there was limited evidence of injury, the Employment Appeal Tribunal concluded that the award was perverse and substituted an award of £2,000.

Ms Graham was one of nine employees at risk of redundancy. Four new roles were being created. As Ms Graham was pregnant, she asserted her statutory right to be offered one of the new roles in preference to others, arguing it was a suitable available vacancy. Eddie Stobart denied the role was suitable for her and required her to attend a competitive interview. She attended an interview but was unsuccessful.

Ms Graham emailed a grievance but received no response. When she queried this she was she was told to resend it, which she did. When her redundancy was confirmed she mentioned her unanswered grievance and the HR manager said she would look into it. It later transpired that Ms Graham’s emails had been blocked by the company’s IT firewall system.

Ms Graham brought a number of claims but the only claim upheld by the employment tribunal was that Eddie Stobart’s failure to take adequate steps to deal with her grievance was an act of pregnancy/maternity discrimination. While the tribunal accepted that the two grievance emails had been blocked by the company’s firewall, the company knew she was saying had raised a grievance and it had not done enough to follow this up. In the absence of an acceptable explanation, the tribunal considered that her absence on maternity leave materially influenced the company’s approach to the grievance. It awarded her £10,000 for injury feelings (which was at the lower end of the middle Vento band at the relevant time).

Eddie Stobart appealed to the Employment Appeal Tribunal, arguing that the award of £10,000 was so excessive that it was perverse. The Employment Appeal Tribunal agreed.

There was limited evidence of injury in this case. Ms Graham had said that she was ‘shocked’ and ‘upset’ because of the company’s dismissive attitude towards her and her ‘rights’. The employment tribunal had found there to be a "degree of upset" but there had been no finding that the injury endured beyond the immediate experience of the detriment, and no finding of any adverse effect on Ms Graham's work, personal life or quality of life.

Given the scant evidence of injury, it had been open to the tribunal to look at the manner of discrimination. Here the discrimination was plainly not overt, it was a one-off act and there was no evidence of ridicule or humiliation. In the circumstances, the failure to deal with the grievance was limited in its scope and impact. This could therefore only have been a lower Vento band case and it was perverse for the tribunal to place it in the middle band.

The Employment Appeal Tribunal allowed the appeal and substituted an award of £2,000, which is towards the lower end of the bottom Vento band. It commented that it would have considered a lower sum but was prepared to infer some additional injury arising from the fact that she was chasing up her grievance at a time when she should have been enjoying her maternity leave.

What does this mean for employers?

An employment tribunal cannot make an injury to feelings award if there is no evidence of injury but where evidence is otherwise sparse, an employment tribunal may take the manner of discrimination into account in order to infer the level of upset caused. Relevant factors include:

• The frequency and duration of exposure to the discriminatory conduct
• Whether the discrimination is overt
• The existence of ridicule or humiliation, and
• Whether it is an act of pregnancy discrimination involving an unborn child – which creates an additional level of stress and detracts from the joy associated with birth.

When assessing injury to feelings, employment tribunals will consider:

• The claimant’s description of the injury
• The duration of the consequences of the discrimination. A claimant’s upset may be fleeting, or it may be long lasting
• The effect on past, current and future work. An evidenced wish to leave an enjoyable and fulfilling line of work due to discriminatory treatment can properly inform the tribunal’s assessment of the hurt caused, and
• The effect on the claimant’s personal life or quality of life.

Eddie Stobart Ltd v Graham