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Calculating Damages

What can a Tribunal award

If you win your discrimination case, the tribunal can:

  •  Make a declaration that you have been discriminated against.
  •  Award compensation (money).
  •  Make recommendations as to action the employer should take to reduce the adverse effect of the discrimination.

If the you win your unfair dismissal  case, the tribunal can:

  •  Make a declaration that you has been unfairly dismissed.
  •  Award compensation (money).
  •  Order reinstatement or re-engagement.

The tribunal can do any number of these things, although recommendations and orders for reinstatement/re-engagement are rare. There is sometimes a tactical advantage in asking for reinstatement, re-engagement or a recommendation, as a failure to comply with such an order could mean enhanced damages. You need to bear in mind that the employer might comply with an order or recommendation, so don’t ask for reinstatement if you can’t bear to be in the same room as your boss!

Claimants sometimes have unrealistic ideas about how much money they will be awarded, often because the cases that make the news are in the news precisely because they are so unusual. It is important that you are realistic about what you want and how likely litigation is to get that result. Doing a thorough schedule of loss as early as you can will assist this.

It is important to put in an optimistic but realistic schedule of loss. As well as helping towards negotiating a settlement, a tribunal is more likely to be swayed by something realistic than by a schedule of loss that asks for hugely inflated amounts of money.

How compensation is calculated

The compensation may consist of:

  • Financial loss which has been incurred by the date of the hearing, e.g. loss of earnings; loss of non-cash benefits; loss of pension contributions.
  • Future financial loss which may continue beyond the end of the hearing, e.g. where you have lost your job, loss of earnings based on how long the Tribunal thinks it will take you to find another job, loss of earnings where you have a new job but at a lower rate of pay, loss of pension value.
  • In discrimination cases, compensation for injury to feelings. Evidence of this will be necessary.
  • In some cases, compensation for injury to health, e.g. where the discrimination has caused severe depression or a stress disorder. Medical evidence will be essential.
  • In discrimination cases, interest.
  • In some cases, uplifts.
  • Limited/fixed amounts for breaches of certain laws, for example breaches of the flexible working procedure.

Note that you do not claim legal costs as part of your compensation. Costs are only awarded at employment tribunal very rarely. There is more information here.

Financial loss which has been incurred by the date of the hearing.

If you have lost money because of your employer’s actions you must claim it, explaining what you are claiming and why. This is true for discrimination, detriment and unfair dismissal claims. You might have lost earnings because you lost her job, or were not given suitable work. You need to compare what you should have received with what you actually received (but be aware that specific rules apply where you have claimed certain benefits- please see below). This can be claimed for both unfair dismissal and discrimination claims.

Evidence of this loss:

  • Payslips from before and after the discrimination happened.
  • Bank statements.
  • Invoices for nursery fees.

Mitigation of loss

An important principle is that a claimant must mitigate, that is try to reduce, her losses. A tribunal will not award a sum for  loss of earnings if they think you have been sitting back allowing the losses to pile up. It is important to bring evidence of mitigation of loss. You must keep records of her job search such as job adverts you have applied for, a diary of which jobs you have applied for, and any written evidence, e.g. written applications or rejection letters. You should also include details of any training undertaken or voluntary work done to try to improve your work prospects. Copies of all of these documents should be brought to the Tribunal hearing.

If there is a reason you have been unable to look for work, for example if you have been ill or looking after small children then bring evidence of this, but note the tribunal is not going to award you loss of earnings for a period where you would have been unable to work in any case.

Evidence:

  • Record of jobs applied for.
  • Record of training done.
  • Medical evidence.
  • Evidence of availability of childcare.

Future loss which may continue beyond the end of the hearing.

Future loss is not limited to claims where you have lost your job, but it is most common in such claims. Predicting future losses will always involve some guesswork. As with injury to feelings it’s important to be optimistic but realistic. It is unusual for a tribunal to award future losses for more than a year.

In Michalak v Mid Yorkshire Hospitals NHS Trust,  Dr Michalak was awarded losses for the rest of her working life, but this was very unusual. This was because she was unlikely to work ever again, so severe was her psychiatric injury. The remedies judgement is very clear on how the tribunal “guessed” when she might retire. (paras 91)

A more likely award is six to twelve months. You should, if possible, bring evidence about how long it is likely that you will be out of work for. This might be a letter from a recruitment agency, or you might be able to show this with printouts of job searches.

If you change career and this is a sensible and realistic thing to do, then the tribunal will take that into account and may even award money for fees incurred in retraining necessary.

Future losses can be claimed for both unfair dismissal and discrimination claims. However, there is a cap on the maximum which can be awarded for an unfair dismissal compensatory award. The maximum which can be awarded is £83,682 (from April 2018) or one year’s gross pay- which ever is the lower figures.

Compensation for injury to feelings

Injury to feelings can only be claimed in discrimination claims. Some tribunals now insist on the Claimant specifying the level of injury to feelings or period of loss claimed. If so, it is probably best to put in an estimate which is on the high side, but nevertheless reasonable and realistic. For injury to feelings, you could refer to the Vento bands, e.g. stating lower band from £900 to £8,600, middle band from £8,600 to £25,700, and higher band from £25,700 up to £42,900.  (Note these Vento bands apply to claims brought from 6 April 2018, earlier claims may use lower figures).

An award for injury to feelings is meant to reflect how upset the employer made the claimant feel, not to punish the employer for how badly they have behaved. Where an employer has behaved particularly badly a tribunal might award “aggravated damages”, but this is unusual. For this reason, it’s important for you to give evidence to the tribunal about what happened to you and how the discrimination affected you and made you feel. You may need witness statements from family, friends, medical professionals or support workers to provide evidence to support your claim. Remember your own witness statement is evidence, so make sure that you state if you were tearful after a meeting, or if you had difficulty sleeping because of the stress of your working pattern.

However as a general guide the lower Vento band is for relatively minor, often one-off acts of discrimination.  In Craddock v Fountoura Mr Craddock was subjected to harassment from a manager who continually suggested that Mr Craddock should start a sexual relationship with a colleague. He was awarded £4,500 for injury to feelings. The judge said “We do not consider the upset caused to be such that the injury to feelings moves out of the bottom band of Vento – however the upset was real and tangible. He cried when he told us about his upset and was very emotional.”

The upper band is for very severe discrimination, such as a campaign of bullying, as happened in Michalak v Mid Yorkshire Hospitals NHS Trust. Dr Michalak was subjected to long term discrimination so severe that she suffered psychiatric injury and is unlikely ever to work again. Dr Michelak brought a great deal of medical evidence as to her injury and as well as being awarded £30,000 for injury to feelings was also awarded a large sum for personal injury. It cannot be overstated how unusual this case was, Dr Michalak’s psychiatric damage was very severe and devastating.

In Miles v Gilbank, an EAT case, the EAT upheld the award of £25,000 (at the time of the claim the top of the upper Vento band) for injury to feeling.  Miss Gilbank was a pregnant employee whose manager had subjected her to a vicious campaign of bullying and discrimination that had demonstrated a “callous disregard or concern for the life of her unborn child”. Unusually the award was made against not just the employer (Quality Hairdressing Ltd) but also Ms Miles, the director of the company who was named as an individual respondent.

The middle band is for acts that fall in the middle, including fairly minor incidents that lead to dismissal. It is worth reading cases where high and low amounts have been awarded to get an idea about how tribunals assess injury to feelings, ultimately though it is very difficult to quantify.

 A tribunal will take a measured and methodical approach when they assess how much to award for injury to feelings. For the past several years, a typical award for injury to feelings for maternity cases has been about £5000.

Evidence:

In most cases, the evidence for injury to feelings will be in your witness statement. Many people find it difficult to talk about their feelings, but unless you tell the tribunal how upset you were, they are not going to know! Questions to ask yourself when drafting your Witness Statement should include “How did I feel when X happened?”, “Was I tearful?”, “On how many occasions did I cry? For how long?”, “Did it affect your relationship with my partner/children/friends?”. It is difficult to strike a balance between telling the tribunal and sounding melodramatic.

If you were badly affected then having someone close to you as a witness to tell the tribunal this might be helpful. Where you were severely affected, for example, suffering from depression, medical evidence will be essential – and seek advice about if you would be better off claiming for personal injury in the civil courts (see below).

Where the acts you are complaining of take the form of bullying, harassment or discrimination, you should consider whether you should also name the perpetrator as a respondent in her Tribunal case.  Note too that it is sometimes possible to bring claims for  harassment in the civil  court (see below).

Naming an individual as a respondent at Employment Tribunal should only be done where that person was personally responsible for the discrimination. However where a fellow employee has subjected the client to discrimination that person should be named or there is a risk that the tribunal will find the employer wasn’t responsible for the discrimination as the employee was acting outside the course of his or her employment.

Compensation for injury to health or harassment.

If you have suffered ill health because of your employer’s actions then seek advice before starting your claim as to whether you should claim this as part of your Employment Tribunal claim or make a separate claim for personal injury in the High or County Court. If you claim personal injury in an Employment Tribunal you may not be able to claim for the same injury in the civil courts. As the Employment Tribunal and civil court have different tests, it is important to get advice on which gives you the best chance of a successful claim and of maximum compensation.

A claim for harassment in the civil court may be possible where you have been subjected to a course of action which amounts to harassment. Again, seek advice before deciding where the claim should be best made.

In discrimination claims only, you can claim interest on past losses and on some of the award for injury to feelings. There is a guide at: www.adviceguide.org.uk

or you could say “such interest as the tribunal sees fit” if the maths defeats you! But remember judges are more likely to award an amount if you have told them what to do rather than having to work it out themselves.

Uplift

Sometimes a claimant can ask for a statutory uplift of her award, for example if the employer fails to follow grievance procedures. Check what the uplift applies to and what the maximum you can ask for is.

Limited/fixed amounts for breaches of certain laws

Some breaches of employment law carry “fixed” compensation which doesn’t relate to actual losses. For example failure to follow the flexible working procedure carries up to eight weeks pay as compensation, pay being capped in the same way as for statutory redundancy. This isn’t really fixed as the tribunal can choose to award anything up to eight week’s pay (including no pay at all, if the breach is minimal).

If someone has been unfairly dismissed then they will be awarded what is called “the basic award” – this is worked out in exactly the same way as redundancy pay and so is a fixed amount, although it will be different for different people. There is information on how to work this out at: www.adviceguide.org.uk

Where someone is dismissed and has more than two years’ service they also claim an amount for “loss of statutory rights” to reflect the fact they will have to work in a new job for two more years to get the right to claim unfair dismissal again. This typically ranges from £200 to £500.

Calculating compensation

Where you were dismissed due to your pregnancy, you need to work out what you would have earned throughout the period of past loss (i.e. up to the date of the tribunal hearing) had you not been dismissed. This involves taking into account what you would have received during your maternity leave by way of Statutory Maternity Pay or Maternity Allowance or any contractual maternity pay entitlement. You must then set off any earnings or benefits you did in fact receive during the relevant period following your dismissal.

You should claim your loss of earnings up to the date of the hearing if you are still out of work at the date of the tribunal hearing. If you think it will take you, for example, another six months to find another job, you should claim for six months’ loss of future wages, after tax and national insurance have been deducted. You will need to estimate how long she thinks she will continue to be out of work. This will depend on the type of work that you do and the job situation in your area. You may need to take some advice from your local Jobcentre about the average time it takes a worker to find a similar job.

If you have found another job, you should claim your loss of earnings up to the date you started the new job. For example, if you were out of work for three months before you found another job, you should make a claim for three months’ lost salary after tax and national insurance have been deducted. If the new job does not pay as much as the old job, you will need to estimate how long it would take you to find another job at the same pay you received before you were dismissed. The rules for calculating this are the same as if you hadn’t found a new job.

Taxation

Usually, the following payments are taxable: salary/earnings, holiday pay, compensation for loss of employment of over £30,000, and most payments in lieu of notice.

The following payments are not usually taxable: compensation for loss of employment of up to £30,000, injury to feeling payments and legal costs.  We are unable to give detailed tax advice, so if in doubt, seek specialist advice.

How receipt of welfare benefits might affect any tribunal award

If you are receiving certain welfare benefits, this can impact on the amount of compensation you get. Any universal credit, income support, JSA and income based ESA you get during the period of time that a loss of earnings award is intended to cover (until the Tribunal hearing) will be set off from the compensation you get for that period of time.  These rules do not apply if a case is settled before the final hearing.

You might find it helpful to look at a sample Schedule of Loss and Remedy and the sample “mini” schedule of loss for the ET1 

 

This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details

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