Can an award for injury to feelings in a discrimination case be reduced because of contributory negligence? First Greater Western Limited & Linley v Waiyego

The Employment Appeal Tribunal, (‘EAT’) in the case of First Greater Western Limited & Linley v Waiyego has confirmed that an award for injury to feelings in a discrimination case will rarely be reduced because of contributory negligence, and certainly not on the facts of this particular case.

Facts

Miss Waiyego (‘the Claimant’) remains employed by First Greater Western Limited, (‘the Respondent’), a train operating company that provides passenger rail services from London Paddington to South Wales and the South West of England, although she was on sick leave for a lengthy period from August 2014 onwards.

The Claimant brought a number of discrimination claims against the Respondent of which two succeeded; a claim for failure to make reasonable adjustments in relation to a delay in organising funding for the Claimant to undergo Cognitive Behavioral Therapy (CBT), and a claim for discrimination arising from disability, by failing to consult her from April to June 2015 when she was not at work, about a reorganisation of her team.

At the remedies hearing, the Employment Tribunal (‘ET’) ordered the Respondent to pay £19,800 plus interest for injury to feelings in relation to her CBT claim and £8,800 plus interest in relation to the non-consultation claim.

The Respondents appealed to the EAT contending that the ET erred in law in failing to make any deduction to reflect the Claimant’s contributory negligence, namely; for failing to provide details to the Respondent of her previous CBT therapist which delayed matters and made a material contribution to the harm she suffered.

Outcome

Although the ET had not even considered the issue of contributory negligence, the EAT nonetheless rejected the Respondent’s appeal and contented that it was unrealistic and fanciful to suppose that the ET would or should have upheld the contributory negligence argument, on the basis that there is no provision in the Equality Act 2010 for reducing the amount of compensation by contributory fault, (as there is in the unfair dismissal jurisdiction).

Additionally, Tribunals should be very wary of accepting invitations to reduce compensation for discriminatory acts by reason of contributory negligence under the Law Reform (Contributory Negligence) Act 1945 (‘the 1945 Act’) as discrimination may not necessarily involve “the fault of any other person or persons” within the wording of the 1945 Act, section 1(1). Discrimination can, at least arguably, be committed without fault in any ordinary sense of that word. It can be unconscious; it can be committed deliberately but misguidedly, with good intentions, and so forth.

Accordingly, the EAT expressed concern that the non-binding observation in the earlier case of Way v Crouch that discrimination claims are subject to contributory negligence is too broad. Rather, the EAT held, where such issues arise, it may be more appropriate to treat them as examples of failure to mitigate loss.

Implication for Employers

Employers should be reminded that extensive awards for injury to feelings in discrimination cases are frequently given. This case highlights that even where there may be decisive evidence that such a claimant has failed to mitigate their loss, it is rare and almost indeed impossible that a Tribunal would reduce any award given on this basis, primarily due to the complexities with discrimination law and the obscurity of showing fault.

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