If an employee wins their discrimination claim, they will be awarded ‘injury to feelings’ compensation in addition to any other losses that flow from the discriminatory act. The injury to feelings award is designed to compensate for the upset and anxiety that were caused by the discrimination. But what if the employee was in some way at fault – should their injury to feelings compensation be reduced?
In First Great Western v Waiyego, Ms Waiyego successfully claimed that her employer had failed to make reasonable adjustments for her disability by failing to provide a CBT course. She was awarded compensation including injury to feelings. The employer appealed to the Employment Appeal Tribunal, arguing that as Ms Waiyego had failed to provide details of her previous CBT therapist, she was partially responsible for the failure to provide a CBT course, and that the award should be reduced.
The EAT said that it would be difficult to apply a principle which dealt with ‘fault’ to a claim which can also occur without fault – some discriminatory acts are entirely unconscious, rather than deliberate. They made the sensible point that if lawmakers had intended for contributory fault to be available in discrimination claims, the concept would have been included in the discrimination legislation (as it is in unfair dismissal claims).
This is a sensible decision. There was an unpalatable potential outcome to this argument had it succeeded – the risk that in harassment cases, it might then be argued that the victim ‘brought the situation on themselves’.