“… the key points as far as the Tribunal are concerned is that the claimant did submit a grievance and it was received by the respondent and further that she made it known to the respondent both at the final consultation and to Ms Saunders that she wished to pursue a grievance about the way she had been treated. If the only issue was about receipt of the email then the Tribunal would accept that the reason that it was not seen by Mr Taylor or the HR admin team was not pregnancy/maternity related but was due to an IT issue. However, on the evidence it is clear that both Ms Webster and Ms Saunders were informed by the claimant that she had lodged a grievance. Ms Webster did make the point that she should really be lodging an appeal. Whilst that may be so it was still clear to the respondent that the claimant was unhappy with the way she had been treated and the decision not to offer her the TSM role without interview. That had been an ongoing issue throughout the consultation process and in the correspondence between Ms Webster and the claimant. Ms Saunders was specifically told about the grievance and did make some enquiries but did not follow up in writing with the claimant when she had the opportunity to do so – a fact she acknowledged. Both Ms Webster and Ms Saunders could have obtained further details regarding the grievance when they spoke. Ms Saunders could have highlighted to the claimant when she wrote back that no grievance had been received. At no point did Ms Webster or Ms Saunders check with their IT team to see whether the email might have been caught in the Mimecast system (indeed this was only done in March 2023). It might be reasonable to assume that emails being stopped in the Mimecast system was something that would occur from time to time and the respondent would be aware of this. In all the circumstances the Tribunal was of the view that the respondent should have done more to enable the claimant to challenge the decision – in circumstances where she clearly told both Ms Webster and Ms Saunders that she was seeking to do so. The Tribunal considers that this does amount to a detriment – as the claimant did not have the opportunity to have her grievance dealt with. Under Section 48(2) of the ERA it is for the respondent to show the ground on which any act or any deliberate failure to act was done. The respondents have not put forward any admissible reason as to why Ms Webster and Ms Saunders did not follow up with the claimant in circumstances where the claimant categorically told them she had lodged a grievance. The Tribunal accepts … that the claimant’s absence on maternity leave from8 April 2022 may have played a part in the decision by the respondent not to investigate the matter further or allow the claimant to challenge the decision. It is more likely than not to have materially influenced the approach they took to the grievance. The Tribunal is entitled accordingly to come to the view that the detrimental treatment was done for a prescribed reason.”
“The Tribunal accepts the evidence of the claimant that she was upset by the manner in which her case was dealt with by the respondent and in particular what appeared to her to be the failure of the respondent to take seriously her position that she had a right to be offered the TSM role as a suitable vacancy. She raised this issue on a number of occasions and took advice from ACAS. She took time to submit a written grievance on three [sic] separate occasions. She was at the same time commencing her maternity leave and moving house. It is understandable that she would experience a degree of upset at the failure, as she saw it, of the respondent to seriously consider her case. It is an important right that employees have to have due consideration given by their employer to any grievance raised. The Tribunal, in assessing damages, has had regard to the Presidential Guidance on Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd [2017] 15 EWCA Civ 879 and to the case of Vento v Chief Constable of West Yorkshire Police (No. 2)2003 IRLR 102 . The Tribunal determines that an injury to feelings award in the sum of£10,000 would be appropriate in this case (being at the lower end of the middle Vento band having regard to the date when this claim was lodged). Accordingly, the Tribunal orders the respondent to pay to the claimant the sum of£10,000 .”
“shocked & upset. People dismissive of what I had to say & my rights.”
“It is self-evident that the assessment of compensation for an injury or loss, which is neither physical nor financial presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise. Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. In these circumstances an appellate body is not entitled to interfere with the assessment of the employment tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy.”
“… Sometimes such injury will be the almost inevitable concomitant of the discrimination having occurred. For example, it can readily be assumed where someone has suffered an act of race or sex discrimination that will by its very nature have caused injury to feelings: it is demeaning to the individual and offensive to his or her dignity to be so treated. A tribunal will readily infer some injury to feelings from the simple fact of the discrimination having occurred. Such injury may of course be compounded by the particular manner in which the discriminatory conduct itself is made manifest. For example, harassment over a lengthy period will plainly result in more considerable distress than a single act of discrimination and should be compensated for accordingly. There will, however, have to be evidence of the nature of the discriminatory conduct.”
“Practice is in our experience variable as to the extent to which claimants in discrimination cases give explicit evidence about the injury to their feelings. In principle they should certainly be asked to do so: it is wrong that tribunals should be asked to make assumptions … the fact remains that even when such evidence is given, it is often difficult to assess objectively because so much depends on the idiosyncrasies of the particular witness, including their articulacy and their levels of stoicism or self-awareness. Some degree of standardisation is realistically inevitable.”
“It is natural for a tribunal, faced with the difficulty of assessing the additional injury specifically attributable to the aggravating conduct, to focus instead on the quality of that conduct, which is inherently easier to assess. This approach is not necessarily illegitimate: as a matter of broad common sense, the more heinous the conduct the greater the impact is likely to have been on the claimant’s feelings. Nevertheless it should be applied with caution, because a focus on the respondent’s conduct can too easily lead a tribunal into fixing compensation by reference to what it thinks is appropriate by way of punishment or in order to give vent to its indignation.”