Malicious prosecution; costs of criminal defence as damages. A passenger prosecuted for pulling a train's communication cord was convicted by the magistrates, had the conviction quashed on appeal to quarter sessions with an award of part of her costs, then sued for the shortfall between the award and what her defence had actually cost. The Court of Appeal held the unrecovered balance could constitute damage: the fiction that a party-and-party costs award fully compensates does not extend to criminal proceedings, where an award of costs is no complete indemnity, and an assessment of costs and an assessment of damages are two different exercises (Devlin LJ). [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; compensatory award. The foundational authority on computation of the compensatory award. Sir John Donaldson (NIRC) held that the compensatory award is to compensate the claimant for actual and prospective loss flowing from the dismissal, assessed on the balance of probabilities. The award covers: immediate loss of earnings (from EDT to hearing), future loss of earnings (calculated on the chance of obtaining equivalent employment), loss of statutory rights (including the qualifying period for a new job, typically a nominal sum), loss of pension rights, and loss of any benefits in kind. The award must be 'just and equitable in all the circumstances' (ERA s.123(1)). No element of punishment of the employer is permitted. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; Future Loss; Earning Capacity. The landmark case establishing the 'Smith v Manchester award' for a 'handicap on the labour market'. It compensates an employee who currently has no loss of earnings but who, due to their disability/injury, would be at a competitive disadvantage if they were to lose their current job. [Summary checked against a practitioner text, not the judgment.]
Unfair dismissal; remedy; contributory fault. The Court of Appeal set the three-stage test under what is now s.123(6) ERA 1996: the employee's conduct must be culpable or blameworthy, meaning perverse, unreasonable or foolish, whether or not it also breached the contract; it must have caused or contributed to the dismissal; and the reduction must be just and equitable. The dismissal was unfair because the BBC could have found the claimant other work, but his refusal of any transfer was 'perverse or foolish ... or ... bloody minded' and the compensatory award was reduced to nil. There is no floor to a s.123(6) deduction. [Summary not yet checked against the judgment.]
Mitigation of loss; setting up own business. Where a dismissed employee mitigates by setting up his own business the question is whether what he in fact did was reasonable in all the circumstances, not whether he sought paid employment. To establish a failure to mitigate it must be shown what step should have been taken, the date on which that step would have produced alternative income, and the amount of that income; compensation is then reduced by that amount. A blanket percentage reduction across the whole loss period is impermissible. Approved in Dore v Aon Training Ltd at [33]. [Summary not yet checked against the judgment.]
Approved by Dore v Aon Training Ltd (formerly Totalamber plc) [2005] EWCA Civ 411 (2005-03-18)
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; compensatory award; just and equitable. Following a finding of unfair dismissal the claimant accepted GBP 9,500 in full and final settlement, which was paid. The agreement did not bind him, but the tribunal held it not just and equitable to award any further compensation even though his loss was greater, and the EAT upheld that at 881A-C. In SPI Spirits (UK) Ltd v Zabelin [2023] EAT 147 at [35] HHJ Auerbach recorded misgivings about the reasoning in Keys, and in Edward v North London NHS Foundation Trust he held that it says nothing about the scope of the rule 64 consent-order power, being a decision on the just and equitable compensatory award [62]. [Summary not yet checked against the judgment.]
Doubted by SPI Spirits (UK) Ltd v Zabelin [2023] EAT 147 (2023-12-06)
Distinguished by Edward v North London NHS Foundation Trust [2026] EAT 116 (2026-08-05)
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; compensation; if a dismissal is procedurally unfair but the employee would have been dismissed anyway, compensation is reduced. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; injury to feelings; principles. Awards for injury to feelings are compensatory, not punitive: an award must be sufficient to mark the gravity of the discriminatory act, but not so high as to be extravagant nor so low as to be derisory, and the tribunal must look at all the circumstances to assess a fair and reasonable sum, bearing in mind the value of the award in everyday life. Reported as Armitage, Marsden and HM Prison Service v Johnson; the principles were later absorbed into the Vento band framework. [Summary checked against a practitioner text, not the judgment.]
“We consider that, as a matter of principle, aggravated damages ought to be available to plaintiffs or applicants for the statutory torts of sex and race discrimination. … We are satisfied that aggravated damages are available in discrimination cases.”Smith J
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; injury to feelings; established the three 'Vento bands' for compensation. [Summary checked against a practitioner text, not the judgment.]
“Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.”Ward LJ, Mummery LJ, Jonathan Parker LJ, at [65]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Unfair dismissal; remedies; the compensatory award under s.123(1) ERA 1996 is confined to financial loss, non-pecuniary loss (injury to feelings, manner of dismissal) is not recoverable. The House of Lords unanimously confirmed the orthodox position that had prevailed in all tribunals prior to the Court of Appeal's contrary decision. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; appeal; remission to the same or a different tribunal; indirect discrimination. Burton J set out factors relevant to whether the EAT, on allowing an appeal, should remit to the original tribunal or order a hearing before a new one: proportionality; the passage of time; bias or partiality; a totally flawed decision; the risk of a second bite; and tribunal professionalism. On the discrimination claim the EAT held that the tribunal had not been entitled to conclude that women have the greater responsibility for childcare and that a considerably larger proportion of women than men are therefore unable to commit to full-time working. That generalisation was not appropriate for men and women solicitors or those in high-powered, highly paid City jobs. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Mitigation of loss; expenses of mitigation; self-employment. Where a dismissed employee mitigates by setting up his own business, the conventional assessment, under both the DDA and the ERA, is that shown in Gardiner-Hill v Roland Berger Technics Ltd: calculate the loss of remuneration, add the costs reasonably incurred in mitigating, then deduct the earnings from the new business, all on the assumption that mitigation in that form was reasonable [33]. The tribunal had instead ignored both the lost remuneration and the new earnings and treated interest on the business borrowing, run from the date of dismissal, as the compensation [33], [36]-[37]. Peter Gibson LJ inferred a finding that starting the business and borrowing for it were reasonable [34]-[35], but a figure of interest on a borrowing could not stand as the total compensation [38]. Appeal allowed; the disputed awards set aside and remitted [39], [41].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; stigma damages; a claimant can recover loss for the difficulty in finding new work due to the stigma of taking legal action.
“It is necessary to ask what would have occurred had there been no unlawful discrimination. If there were a chance that dismissal would have occurred in any event, even had there been no discrimination, then in the normal way that must be factored into the calculation of loss.”Lady Justice Smith, at [57]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Pension loss; new employment on better terms. Where a claimant moves to new employment on an overall better remuneration package, pension benefits have no special or unique status entitling a tribunal to treat continuing final-salary pension loss separately: the remuneration package must be assessed as a whole and the same test applied to all its elements.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Costs; causation; the tribunal must look at the whole picture of unreasonable conduct.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; the 'Fox Principle'; established that an employee's estate can claim compensation for the loss of a death-in-service benefit resulting from an unlawful dismissal. The benefit is treated as part of the employee's remuneration and its loss is a real loss to the individual.
Acas Code; uplift to compensation; ill-health capability dismissal. The EAT (Simler P) concluded that the Acas Code did not apply to a dismissal for lack of capability caused by ill health, and upheld the tribunal's refusal to apply an uplift to the claimant's compensation. A 'disciplinary situation' is not necessarily limited to misconduct or poor performance, but it does not extend to a procedure to terminate employment for incapability due to ill health where there is no element of culpable conduct on the employee's part. The Code is limited to internal procedures likely to be concerned with the correction or punishment of culpable misconduct or performance, or some other form of culpable behaviour. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Discrimination; personal injury; divisibility and apportionment of psychiatric injury. The governing authority. Where psychiatric injury has multiple extrinsic causes the tribunal must seek a rational basis for apportioning the harm between the part caused by the employer's wrong and the part which was not; the exercise 'is concerned not with the divisibility of the causative contribution but with the divisibility of the harm' [71]. Hatton proposition 15 preferred to the contrary obiter view in Dickins v O2 plc [70]. Propositions 15 (apportionment between concurrent causes) and 16 (quantification for pre-existing vulnerability) are distinct and must not be conflated [62]. On the facts no apportionment was made, the medical evidence showing the claimant's diagnosable illness manifested only after the acts complained of.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; interest; injury to feelings; Vento bands. The Interest on Awards in Discrimination Cases Regulations 1996 require a tribunal to consider interest whether or not a party has applied: it was not correct for the tribunal to record the absence of an application in support of awarding none [10]-[11]. Nor could it say that calculation was impossible: a tribunal must do the best it can on the information before it, especially where the respondent's record-keeping caused the difficulty [12]. That was an error of law [13]. Placing injury to feelings near the top of the lower band disclosed no error: the tribunal had directed itself to the actual injury suffered, not the gravity of the respondent's acts [17], and it is not the case that only one-off incidents fall within the lower band [19]. Appeal allowed in part: the EAT substituted GBP 12,757, including an agreed Simmons v Castle uplift of GBP 840 and interest of GBP 3,517 [20]-[22].
Unfair dismissal; remedy; reinstatement and re-engagement; practicability under s.116 ERA 1996. 'Practicable' means more than possible: the order must be capable of being carried into effect with success. Re-engagement is not practicable where the employer genuinely and rationally believes that the employee cannot perform the role, or that the employee's conduct has broken down trust and confidence. The tribunal must test the employer's belief for genuineness and rational foundation rather than substitute its own view, and an employer cannot defeat the remedy by bare assertion. The re-engagement order was set aside because the claimant did not speak Mandarin, an essential requirement of the role.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
ACAS Code uplift; s.207A TULRCA 1992. Four-stage approach at [77]: (i) is the case such as to make it just and equitable to award any uplift; (ii) if so, what percentage, which must not exceed 25 per cent though it may equal it; (iii) does the uplift overlap, or potentially overlap, with other awards, and what adjustment to the percentage is required to avoid double counting; (iv) a final sense check that the sum of money represented by the uplift is not disproportionate in absolute terms. The 25 per cent maximum is for the most serious cases, but such cases need not be exceptional. The EAT upheld a 25 per cent uplift applied to the compensatory award, injury to feelings and aggravated damages. Full name (1) Sir Benjamin Slade Bt (2) Andrew Hamilton v (1) Melissa Biggs (2) Roxanne Stewart (3) Aethelbert Ltd; there is no official neutral citation and no ICR report.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; Chagger deduction; the tribunal erred by failing to construct a proper counterfactual, it did not ask whether the claimant's thoughts about leaving were themselves affected by the discrimination before applying a 35% deduction. Also: sexual harassment formed part of a continuing discriminatory state of affairs, keeping an otherwise out-of-time claim within jurisdiction.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.