The Duty to Make Reasonable Adjustments, and How to Assess Quantum for Injury to Feelings Compensation

In the recent case of Chawla v Hewlett Packard Limited, the Employment Appeals Tribunal (EAT) considered, firstly, whether an employer’s policy of shutting down internet access for long-term sick employees was a provision, criterion or practice (PCP), which triggers its duty to make reasonable adjustments, and secondly, whether the uplift on the guidelines from Vento v Chief Constable of West Yorkshire Police (No.2), as proposed in the case of Simmons v Castle, would apply in the Employment Tribunal.

In this claim, the Claimant had raised three grievances with the Respondent, and submitted four ET1s to the Employment Tribunal. During the proceedings, the parties had to attend five preliminary hearings concerning various issues. The Employment Tribunal eventually found that the Respondent was liable for a variety of discriminatory acts against the Claimant.

The Respondent appealed to the EAT.

The EAT agreed with the Employment Tribunal’s decision on liability. The PCP of stopping any e-mail access caused a substantial disadvantage to the Claimant as he was not informed about developments to his terms and conditions of employment and his benefits. This triggered the duty to make reasonable adjustments, and the Respondent failed to make reasonable adjustments.

As the Respondent had also delayed the Claimant from joining the Respondent’s share purchase plan, this was considered to be direct discrimination. Although, the failure to pay a retention bonus was not discrimination; nor was forcing the Claimant to deal with company lawyers in relation to his grievances. The Claimant also claimed that the Respondent had forbidden co-workers from communicating with him. This was not direct discrimination. The Claimant’s claim for harassment was not successful.

On remedy, no award had been made to the Claimant for loss of earnings because the liability issues that had been established only had a “fractional influence” on the Claimant’s illness. The Respondent’s default exacerbated the illness, but did not cause it. The EAT held that the Employment Tribunal had erred in making no award for injury to feelings in respect of stress generated by the Respondent’s failure to make reasonable adjustments, which could have enabled the Claimant to join the Respondent’s share purchase plan. The EAT, therefore, increased the overall award from £5,000 to £8,000.

Does the uplift suggested in Simmons v Castle apply in the Employment Tribunal?

In making its decision to increase the compensation awarded to the Claimant, the EAT confirmed that the Tribunal’s award of £5,000 for injury to feelings for the Respondent’s delay in communicating the right to exercise share options was consistent with the guidelines from Vento.

However it went on to confirm that the uplift of 10% on the Vento guidelines, as increased by Da’Bell v NSPCC, should not apply in the Employment Tribunal.

In Da’Bell, the rationale for the uplift on the award was justified because the level of compensation for non-pecuniary loss should be assessed in “today’s money”, taking into account inflation. The increase was necessary to reflect the current value of money.

However, in Simmons, which was decided in the Court of Appeal, the rationale for the 10% uplift was because of the upcoming change in the civil costs regime. As there is no costs regime in the Employment Tribunal or EAT, the rationale for the uplift given in Simmons does not apply to litigation in the Employment Tribunal.

The correct principle to be applied by Employment Tribunals when making such awards is that from Da’Bell, where the quantum for non-pecuniary loss should be assessed in “today’s money”.

This is an interesting clarification from the EAT on the issue of assessing the value of compensation. It should not necessarily have an impact on the value of claims for injury to feelings, as the way in which quantum is assessed will be based on the current value of money based on inflation. However it does rule out the argument that an award can be increased by 10% in accordance with the decision in Simmons.

If you have been discriminated against by your employer, or you are being placed at a disadvantage at work because of your race, sex, disability or any other reason, please contact the dedicated employment department at Michael Lewin Solicitors, and we will be happy to discuss your situation with you.

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