Base Childrenswear Ltd v Otshudi (EAT)
The EAT has confirmed that "one-off" acts of discrimination can justifiably give rise to substantial injury to feelings awards which fall within the middle "Vento" band (i.e. £8,600 - £25,700). This case also implies that the ACAS Code of Practice on Disciplinary and Grievances applies equally to grievances submitted after the termination of employment and that unreasonable non-compliance by the employer can therefore give rise to a 25% uplift on total compensation.
The Claimant worked as an in-house photographer for the Respondent for little more than three months. She was summarily dismissed, purportedly by reason of redundancy. Believing that this decision was influenced by her race, she submitted a grievance and an appeal against her dismissal raising her concerns. Both went unanswered.
The Employment Tribunal held that her dismissal was an act of racial harassment and awarded her, amongst other heads of damage, £16,000 for "injury to feelings" on the basis that the severity of the incident should fall within the middle "Vento" band. It also awarded a 25% uplift to the Claimant's overall compensation, due to the Respondent's failure respond to and otherwise comply with the ACAS Code in respect of her grievance. On appeal, the EAT declined to overturn these awards. When assessing which Vento band discriminatory conduct should fall into, it noted that a Tribunal should assess the severity of the discriminatory act's effect on the Claimant; the number of unlawful acts should not be determinative.
This case is a helpful reminder that it is the severity and potential effect of discriminatory actions on the recipient, as opposed to whether they form part of a course of conduct, which is important when assessing the appropriate level of an "injury to feelings" award. The EAT also seems to have implicitly agreed with the Tribunal's assessment that it was entitled to apply a 25% uplift to compensation for an unreasonable failure to follow the ACAS Code, notwithstanding that the relevant grievance was submitted post-termination. This illustrates risks associated with not following the ACAS Code in all disciplinary and grievance cases, even where an individual does not enjoy protection against unfair dismissal or submits a grievance after the termination of their employment.