Compensation – Important Remedy Decisions (8 July 2023)
19/07/2023
COMPENSATION – IMPORTANT REMEDY DECISIONS (8 July)
Historically June is a busy month for practitioners and the Courts trying to finish up before the summer recess period. And in keeping with that tradition, a number of interesting Judgements have been handed down by the courts.
These included two significant remedy Judgments that we have commented on below.
Maya Forstater v CGD
Forstater is the gender critical case that was determined last year.
In the merits Judgment, the Tribunal found that CGD had discriminated against Forstater when it decided not to offer her full employment or to renew her Visiting Fellowship because of her gender critical beliefs. This was found to be discriminatory.
This year the remedy hearing took place in March 2023 with the decision issued in June 2023. The Tribunal awarded Forstater a total sum of £106,404.31 compensation made up of (approximately):
- £25,000 for injury to feelings
- £2,000 for aggravated damages **
- £14,000 for loss of earnings
- £50,000 for loss of chance of earnings (equivalent to 1 year’s salary)
- £14,778.47 for interest
** Aggravated damages were awarded due to CGD’s public statements about the case which included: “We believe CGD must take a consistent stance against all forms of bigotry…..”
The Tribunal found that this, and other public statements, amounted to oppressive or high-handed conduct in that the Company had overstated the judicial observations about Forstater’s belief and in that in doing so, they equated that belief to bigotry. The Tribunals findings and comments are a stark reminder for Organisations to be careful for their communications during litigation.
Jhuti is a well-known case for a variety reasons. It is a whistleblowing case that has been considered by the Court of Appeal on two separate occasions and pathed the way for the Official Solicitor to act as a Litigation Friend** in Tribunal cases in GB as Claimant was found to lack capacity to litigate on her own behalf.
[**NB: Northern Ireland is different and at present the Official Solicitor does not have standing to act as a Litigation Friend in our Tribunals, we are, however, currently involved in a Northern Ireland case in the Court of Appeal on this very point with Judgement imminently expected.]
The merits Judgment found that Jhuti was unfairly dismissed and suffered detriments (bullying and harassment over a period of months) after she raised concerns that Ofcom guidance was breached. The bullying and harassment included criticisms, setting unfair targets, holding mandatory meetings and making unwarranted criticism of her performance. As a result of these actions, Jhuti i went off ill and became extremely unwell.
Following the merits Judgment, the Tribunal provided the parties with time to try and agree compensation. When parties were unable to agree compensation courts awarded Jhuti a figure £2,365,614.13 made up of:
- £718.50 for Basic Award for Unfair Dismissal
- £494,213.79 for Past Losses
- £1,079,165.07 for Future Losses (including Pension Loss)
- £67,265 for Detriment Compensation
- £8,229.49 for 0.5% Uplift for a failure to follow ACAS Code
- £716,022.28 for Grossing Up for Tax
Whistleblowing Claims (same as in discrimination claims) damages are uncapped, and this case is an example where significant damages can be awarded to Claimants where they have been unfairly and unlawfully treated by their employer as a result of making a protected disclosure. It also demonstrates that when assessing compensation, the Tribunal will consider both the discriminatory acts but also their impact on the person and you take the person as you find them. So, whilst one person may suffer moderate hurt, upset and humiliation another person’s reaction can be more extreme and become very unwell. In those latter circumstances the compensation will be significantly higher.