Employment Appeal Tribunal remits aggravated damages award in Khans Solicitors v Kaiser

The Employment Appeal Tribunal has remitted two limited but legally significant elements of a remedy judgement against a firm of solicitors found to have discriminated against a former employee, ruling that the original tribunal failed to properly explain its award of aggravated damages.

In Khans Solicitors v Kaiser [2026] EAT 137, His Honour Judge James Tayler, sitting as Deputy President, allowed the appeal in part, sending the question of aggravated damages and a separate award covering the shortfall between statutory sick pay and full pay back to the same Employment Tribunal for redetermination.

The underlying claim arose from the respondent's employment at the firm between April 2019 and February 2021. An earlier liability judgement had upheld complaints of disability discrimination, sex related harassment and automatic unfair dismissal for asserting a statutory right. The tribunal found the firm had failed to make reasonable adjustments, including providing a larger screen and an ergonomic chair, and that a colleague had made remarks linking the claimant's headscarf to her prospects of attracting men. It further found the claimant had been dismissed partly because she disclosed a new health condition.

At the remedy hearing, the tribunal awarded £25,000 for injury to feelings at the top of the middle Vento band, alongside a separate £5,000 for aggravated damages and £672.56 representing the difference between statutory sick pay and full pay for part of her sickness absence. The appeal concerned only these latter two elements, a small fraction of the total award of £109,020.64.

Judge Tayler undertook a detailed review of the authorities governing aggravated damages, from Alexander v Home Office [1988] ICR 685 through to Commissioner of Police of the Metropolis v Shaw [2012] ICR 464, reiterating that such awards are compensatory rather than punitive and require an identifiable additional aggravating factor, whether in the manner of the discrimination, the motive behind it or conduct following it, that has caused injury beyond what the injury to feelings award already reflects.

Applying that framework, the judgement found the original tribunal's reasoning fell short. Its observation that the "most serious aggravating factor" was that the discriminator was a firm of solicitors advising the public on employment law was characterised as sounding punitive rather than compensatory. Similarly, findings that complaints had been treated dismissively or that a senior partner held influence within the practice were not tied to any assessment of increased injury caused specifically by those factors. The tribunal, the judgement noted, had not addressed the necessary causation requirement linking any aggravating conduct to additional distress.

On the sick pay element, the tribunal had accepted that the claimant would likely have avoided part of her sickness absence but for the firm's discriminatory conduct, while also finding she would probably have contracted Covid-19 regardless. Judge Tayler found no clear methodology explaining how the four week period or the resulting figure had been calculated, and directed the tribunal to assess the matter on a percentage chance basis for the periods before and after the claimant's Covid-19 diagnosis.

Both issues were remitted to the same Employment Tribunal, which the judgement noted remained best placed to reach a fresh determination given its extensive and largely unchallenged factual findings. The judgement also noted that, at the time of the hearing, no payment had been made towards the substantial part of the award unaffected by the appeal, and drew attention to the tribunal's enforcement powers under the Employment Tribunals Act 1996.