In Cadogan Hotel Partners Ltd v Ozog the EAT has confirmed that awards for injury to feelings in discrimination cases are subject to a 10% uplift following the Court of Appeal’s decision in Simmons v Castle. It also held that an employer’s failure to deal with an oral complaint did not attract the uplift on compensation for unreasonable failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures because the Code requires a grievance to be made in writing.
O succeeded in claims of sex discrimination and harassment against CHP Ltd and was awarded £10,000 in respect of injury to feelings. When the tribunal delivered its judgment orally it noted that O had twice raised oral grievances about the harassment and, on that basis, increased the award by 25% to reflect CHP Ltd’s failure to respond to the grievances in the manner prescribed by the Acas Code. However, when CHP Ltd’s counsel questioned whether the grievance had to be in writing to satisfy the Code, the judge noted that she would make an amendment. When the written judgment followed it included a new finding that O’s resignation letter ‘clearly alluded’ to the complaints and that the Code was therefore engaged. CHP Ltd appealed to the EAT, arguing that the injury to feelings award was too high and that the tribunal erred in applying the 25% uplift.
Before considering the specific grounds of appeal, the EAT noted that injury to feelings awards made after 1 April 2013 attract a 10% uplift, following the rule laid down by the Court of Appeal in Simmons v Castle 2012 EWCA Civ 1039 in relation to general damages in civil claims. The uplift should therefore have been applied by the tribunal. Although there was no cross-appeal on this point, the parties agreed that the uplift would apply to any award decided by the EAT. The EAT also referred to the procedural impropriety of the tribunal changing its written judgment on a substantive matter from that which was given orally on the day. It noted that it might be appropriate for a tribunal to recall an oral judgment rather than formally reviewing it where an obvious error or omission comes to light soon after the hearing but before the order is drawn up. However, save for such unusual cases, the oral judgment must be final. Furthermore, even where recall is appropriate, it will still be necessary to give the parties the opportunity to be heard.
As for the substance of the appeal, the EAT agreed that the tribunal had erred in assessing the harassment as falling into the middle band set out in Vento v Chief Constable of West Yorkshire Police (No.2) 2003 ICR 318. The ‘mild’ sexual harassment in this case consisted of one incident that made O feel uncomfortable and one that made her feel very uncomfortable. The EAT held that the conduct fell into the lower Vento band and substituted an award of £6,000, along with the 10% uplift. Turning to the Acas Code uplift, the EAT stated that the Code requires grievances to be put in writing and so the question then was whether O had done this or, rather, whether the tribunal had properly found that she did. The EAT concluded that the tribunal did not make such a finding. The oral judgment had to be taken to represent the tribunal’s view on this point – the finding in the written judgment that the resignation letter satisfied the requirement for a written grievance was an impermissible addition. Accordingly, the 25% uplift would be quashed.