the prospect of dismissal they brought forward a claim of unfair dismissal, which to date has been successful at Tribunal and at the EAT.
Thank you to Daniel Barnett’s Employment Law Bulletin for alerting us to the decision made by Jackson LJ in Manchester College v Hazel Anor
The Court of Appeal had to decide whether the employees, whose application was made under CPR r.52.9, were entitled to cost protection in an upcoming appeal by their employer in the Court of Appeal. The court decided that there was "a compelling reason" as required by CPR r.52.9 for it to apply the cost protection condition to the appeal as, amongst other things, the employees: had won at both the employment tribunal and EAT, had limited means, were relying on pro bono representation and would not be able to continue resisting the appeal unless they received costs protection. Although fact specific the case is of more general importance as one of the reasons relied upon by Jackson LJ was that from 1 April 2013 the case would fall squarely within the new CPR r.52.9A. This new rule allows the court to exclude or limit cost recovery when a case passes from a "no costs" or "low costs" jurisdiction to a court with full costs shifting powers. Notably this new rule does not require a "compelling reason" and will mitigate the harshness of Eweida v British Airways PLC in which the court held that despite the appellant moving from the "no cost" jurisdiction of the EAT to the cost shifting jurisdiction of the Court of Appeal it had no power to make a protective costs order or costs capping order.
INJURY TO FEELINGS & AGGRAVATED DAMAGES
8 April 2013
The principle as to how tribunals should approach injury to feelings and aggravated damages in discrimination cases has been discussed by the Employment Appeals Tribunal.
Thank you to Daniel Barnett’s Employment Law Bulletin for alerting us to HM Land Registry v McGlue
Mrs McGlue was on a career break following maternity leave, from which she could return at any time on short notice. In order to achieve reductions in head count and cost the employer set up a voluntary severance scheme. Mrs McGlue applied. Management then unilaterally decided to exclude all those who were on a career break. This decision was not published and was not subject to consultation with employees or trade unions. Mrs McGlue was also misled into thinking that she still remained eligible for this scheme and that her application would be considered in due course. She was turned down. Her grievance took 7 months to resolve before it was dismissed. She succeeded before the employment tribunal in her claim for indirect sex discrimination. She was awarded compensation which included injury to feelings at £12,000 and an aggravated award of a further £5,000. The employer appealed, arguing, amongst other things, that the award for injury to feelings was too high. The EAT noted however that the award made was at the midpoint of the middle range on the Vento scale. Awards in respect of injury to feelings, said the EAT, were not susceptible of close calculation and would not be interfered with unless they were "manifestly excessive" or "wrong in principle". Here the tribunal had used its experience properly to assess the effect of the conduct on the Claimant. However, in the opinion of the EAT, additional aggravated damages were not appropriate. They should be awarded, as a rule, if the act is done in an exceptionally upsetting way, or for a bad motive, or was aggravated by subsequent conduct, for example at trial. The EAT held that in this case the facts did not meet those conditions.
CIPP Policy News Journal
12/04/2013, Page 82 of 362
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