Remedies and penalties
There is no common law contractual remedy for financial or other loss allegedly flowing from the manner or circumstances of an employee's dismissal, holds the House of Lords in Johnson v Unisys Ltd.
In Abbey National plc v Formoso, the EAT rejects an employment tribunal's "reasonable employer" approach to calculating the financial loss flowing from a discriminatory dismissal.
In principle, employees can recover "stigma" damages in respect of their reasonably foreseeable loss of employment prospects resulting from their employer's breach of the implied term of trust and confidence, holds the House of Lords in Malik and another v Bank of Credit and Commerce International SA (in compulsory liquidation).
In HM Prison Service and others v Johnson, the EAT upholds an award of £21,000 for injury to feelings made by an industrial tribunal to a black prison officer who was subjected to a prolonged campaign of racial harassment and discrimination.
In Digital Equipment Co Ltd v Clements (No.2), the EAT holds that, in calculating the compensatory award for unfair dismissal, any termination payment the employee received from the employer should be deducted from his or her loss caused by the dismissal before reducing that net loss by the percentage chance, if any, that he or she would have been retained had the employer acted fairly.
A black prison officer who was subjected to "a campaign of appalling treatment" over a period of almost two years is awarded compensation of £28,500, including a record £21,000 for injury to feelings, by a London South industrial tribunal (Chair: E R Donnelly) in Johnson v (1) Armitage (2) Marsden (3) HM Prison Service.
In addition to awarding £2,500 for injury to feelings, a Manchester industrial tribunal (Chair: C Porter) in Ruizo v (1) Tesco Stores Ltd and (2) Lea awards a further £1,500 aggravated damages for the employer's lack of contrition and continuing failure to address or alleviate the problem of racial abuse.
In Hunt v Secretary of State for Defence a London (South) industrial tribunal (Chair: T J Mason) doubts whether it is right to follow the "chance" approach to assessing past loss suggested by the EAT in the Cannock decision.
In Campbell v Datum Engineering Co Ltd a Birmingham industrial tribunal recommends that a firm found to have unlawfully discriminated on grounds of race should take steps such as introducing a formal racial harassment procedure, providing recruitment training for all managers and giving consideration to the eradication of pay anomalies in order to avoid future race claims.
In Automotive and Financial Group Ltd v Bark the EAT has held that a compensation award of £2,000 for injury to feelings to a trainee salesperson, who was dismissed after she was sexually harassed, fell within the bracket of permissible awards.
Employment law cases: HR and legal information and guidance relating to remedies and penalties.