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Law for Business

Knowhow - guidance - precedents

22 SEP 2014

Automatic Uplift on Injury to Feelings Compensation

Pam Loch

Managing Partner


Automatic Uplift on Injury to Feelings Compensation
The EAT applied an automatic uplift to the level of award for the first time in Cadogan Hotel Partners Ltd v Ozog. The EAT decided:

•an award for injury to feelings in a discrimination case should receive an annual 10% uplift; and

•an employer’s failure to deal with an employee’s oral complaint does not attract the 25% uplift for unreasonable failure to follow the ACAS Code on Disciplinary and Grievance Procedures.

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Ms Ozog was employed as a waitress. A new head waiter, Mr Torok, was employed at the hotel. He inappropriately kissed and touched Ms Ozog on her arms and back. On another occasion he approached her with his trousers undone and his belt removed saying “Do you want this body, come on, you are a woman”.

He also threatened and bullied Ms Ozog who complained about his behaviour to her manager. The matter was taken no further. Ms Ozog was suspended in relation to her performance. In a meeting with her manager and HR she complained again of Mr Torok’s behaviour and afterwards she sent an email resigning with immediate effect.

Ms Ozog claimed sex discrimination and sexual harassment. The Tribunal found in her favour and awarded £10,000 injury to feelings, in line with the Vento middle band.

The Tribunal found the ACAS Code was engaged and awarded the maximum uplift of 25% for Cadogan’s failure to investigate her complaints. Cadogan appealed.

The EAT Decision

As Ms Ozog felt “very uncomfortable” but not traumatised by the behaviour, the EAT decided it warranted compensation at the top end of the Vento lower band. Therefore, her award was reduced to £6,600.00 incorporating a 10% uplift.

The EAT rejected the 25% uplift saying the ACAS Code was not engaged due to Ms Ozog’s oral complaint. Her letter was a resignation and did not constitute a written grievance.

As a reminder the new current guidelines for compensation for injury to feelings are:

£19,800 - £33,000 – for the most serious, exceptional cases where there is a lengthy campaign of harassment.

£6,600 - £19,800 – for serious cases which do not merit the highest band.

£660 - £6,600 – for less serious or one off incidents.

Advice for employers

Employers should note that there are other compensatory amounts an employee may be entitled to for discrimination. These can include; loss of earnings up to the hearing and future losses, aggravated damages and personal injury.

To limit an employer’s liability consider:

•having a written policy which is implemented, stating discrimination and sexual harassment will not be permitted;

•communicate the policy to all staff;

•ensuring staff are given training and managers understand their responsibilities in relation to harassment and discrimination;

•ensuring there is no victimisation following a complaint.

Employers will not be able to successfully avoid being vicariously liable for their employees’ acts unless they have a policy and train staff on it as a first step.

This note is not intended to substitute legal advice. For further information on reviewing or implementing policies or protecting your position with or against a claim, please contact:

Pam Loch, Managing Director of niche employment law practice Loch Associates Employment Lawyers, and Managing Director of HR Advise Me Limited.