Tayler: Tribunal erred in its analysis
A law firm which discriminated against a paralegal should not have to pay aggravated damages simply because it advised on employment law, a judge has ruled.
His Honour Judge James Tayler, deputy president of the Employment Appeal Tribunal, said it appeared the first-instance tribunal had made the award as a punishment.
He also questioned why London law firm Khans Solicitors had not yet paid Forida Kaiser the award of £105,500 in damages and £3,600 in costs made two years ago.
The two issues Khans appealed on only made up a small percentage of the sum, and in any event an appeal was no reason not to pay within the required 14 days of the original judgment.
Ms Kaiser worked at the firm from April 2019 to February 2021. The employment tribunal (ET) found that she was dismissed over unpaid wages, subjected to disability discrimination and harassed on the basis of her sex when she was told that if she did not wear a scarf she might find it easier to attract men.
The award included damages for injury to feelings of £25,000, with the ET saying that, “as a result of the treatment and her experiences at the respondent, she has given up her dream of becoming a solicitor”.
There was also compensation for a failure to make reasonable adjustments, failure to pay holiday pay, breach of contract, and a failure to provide her with written terms and conditions of employment.
The ET made an award of aggravated damages of £5,000, with the “most aggravating factor” being that “the discriminator is a firm of solicitors. This is a business that represents and advises members of the public on employment law issues”.
Khans appealed against this and the decision to award £672 as the difference between statutory sick pay and full pay for part of a period of sickness absence.
HHJ Tayler held that the ET “erred in its analysis” of the claim for aggravated damages. It did not “properly identify whether there were additional aggravating factors that caused increased injury”.
Rather, it appeared that the ET was “expressing its displeasure that a firm of solicitors should have treated an employee so badly. It sounds punitive, which is not a permissible basis to award aggravated damages”.
The judge explained: “The fact that a respondent is a firm of solicitors with experience of employment law could be relevant if, as a matter of fact, it resulted in high handed high-handed, malicious, insulting or oppressive conduct because, for example, the respondent knew that it was acting unlawfully but went ahead anyway and that resulted in increased injury to the claimant.
“Such an award would have to be based on proper findings of fact.”
He added that, while the ET identified other conduct that could amount to additional aggravating factors, “the assessment was not sufficiently based on clear findings of fact”, and there was possible double counting with the award for injury to feelings.
On the sick pay, HHJ Tayler said there was no finding, “and there appears to have been no basis for a finding”, of a contractual right to full pay whilst absent for sickness or any basis for the difference between statutory sick pay and full pay being awarded as compensation for unfair dismissal.
He remitted both issues to the same ET to redetermine.
The judge was told at the hearing that no payment has been made and that Ms Kaiser has not started enforcement action.
“I suggested that the claimant should consider taking advice about enforcement of the award,” he said, pointing out that an appeal to the EAT did not automatically result in a stay.
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