It has always been difficult to understand how the tribunals quantify the level of compensation payable to a claimant employee who alleges to have had their ‘feelings hurt’ by their employer. Should this be a 4 figure sum? a 5 figure sum? An amount which would pay for a relaxing long holiday to recover…? Though it is obvious that it is based on each individual case and each set of facts, the recent case of The Cadogan Hotel Partners Ltd v Ozog UKEAT/0001/14, shows a fairly broad spectrum of possible resulting monetary awards.

In this case, the EAT considered whether an employment tribunal had awarded too much compensation to an employee who had been discriminated against on the grounds of her sex. Ms Ozog, the claimant, was employed as a waitress by the Cadogan Hotel in London. 6 months into her employment, a new male waiter joined and started to do things such as touch Ms Ozog inappropriately, kissing her arms and touching her back; he went on to ask her whether she had a boyfriend and in one incident, even went on to unbuckle his trouser belt and asking her in front of another female colleague - ‘Do you want this body? Come on, you are a woman. You should want this body” (the “belt incident”). The tribunal found these to be the facts in the case.

The Equality Act 2010 provides that compensation for discrimination may include (or be made up entirely of) compensation for injured feelings, however, does not set out any guidance as to how this should be quantified, making the question of quantum challenging for the tribunals; tribunals must therefore rely on the leading case, Vento v Chief Constable of West Yorkshire Policy [2002] and the guidelines contained therein.

Though the tribunal dealing with the initial claim, had considered Vento, it had focused on its own view of the respondent’s conduct in making the award of £10,000, rather than looking at the effect it had actually had on the claimant employee, which had never gone beyond making her feel “very uncomfortable”.

The matter of ‘where’ on the Vento band the injury to feelings lie, is a highly interesting legal issue. In the written judgment of the tribunal, it found that touching and kissing of Ms Ozog’s hand was a “mild form of sexual harassment”, which had made her feel “uncomfortable”. The belt incident, however was found to be direct sex discrimination and harassment, which had made Ms Ozog “very uncomfortable”. So - how much? The tribunal had thought it to be £10,000 worth of feeling “very uncomfortable”.

In addition, the tribunal granted a 25% uplift on the compensation awarded to Ms Ozog in light of the alleged failure to follow the Acas Code properly; the EAT went on to quash this however, stating that these were not in fact the findings of the tribunal - in the tribunal’s oral judgment, it found that the claimant had not submitted a grievance in writing, however, stated in the written judgment that the tribunal found the claimant’s resignation letter constituted a written grievance and therefore triggered the application of the Acas Code; the 25% uplift was quashed.

The EAT, when making its judgment, recognised the difficulty in simply substituting their own award that would fall somewhere in the lower band of Vento and interestingly, Cadogan also conceded that it would be appropriate to make an award at the top end of that band, resulting in a figure of £6,000 plus 10% uplift in accordance with Simmons v Castle and Others [2012], making a total of £6,600 to be awarded to Ms Ozog.

Though it goes without saying again that it does depend heavily on the facts of the case, the important issues for the employer is to ensure that there is a proper grievance policy in place (and disciplinary procedure in relation to the male waiter) and that it is legally compliant, sound and most importantly followed.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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