ET claims – compensation: A recent EAT claim is a helpful reminder about the tax treatment of injury to feelings awards, with a distinction made depending on whether the injury to feelings arises from the dismissal or something else. To the extent an injury to feelings award relates to the dismissal, it is subject to tax, whereas other injury to feelings awards are not. Where there is an element of both, the tax treatment should be apportioned appropriately. This apportionment had not occurred in this case, and the ET had wrongly treated everything as taxable (and awarded a grossed-up amount to compensate for this). The case also highlighted the importance of supporting evidence when assessing whether a claimant has taken reasonable steps to mitigate their losses. (Wealmoor Ltd v. Poniatowski)

ET claims – costs: The EAT has criticised an ET’s decision to award £20,000 of costs against the claimant when he lost his race discrimination claim. Starting as a litigant in person and later instructing solicitors, the ET had been wrong to assume that the claimant should have known his claim lacked merit while unrepresented, and that, once represented, his lawyers must have advised that his claim had no reasonable prospect of success. The EAT had also failed to properly analyse the nature, effect and gravity of the claimant’s unreasonable conduct. In assessing costs applications, the EAT confirmed that discrimination claims should not necessarily be handled differently from other types of claims, as the legal test remains the same. However, it acknowledged that certain features of discrimination claims mean that special and policy considerations may be relevant. (Madu v. Loughborough College)

ET proceedings – anonymity: Overturning the ET’s decision, the EAT has granted anonymity to a claimant, a university lecturer, who argued that publicly disclosing his disability (autism spectrum disorder) would adversely affect his future career prospects and risk disorder in his lessons. The claimant hid his disability (including from family), and the ET had wrongly assumed that the issuance of a claim meant his details were already in the public domain. The EAT was satisfied that there was evidence that individuals, including highly experienced professionals, who disclosed autism during an application process were less likely to be taken forward for roles, and that it was reasonable for the claimant to believe that his career prospects would be negatively affected. Weighing this up with the principles of open justice, the EAT concluded that the claimant’s concerns were sufficient to grant anonymity to both parties. (F v. J)

ET proceedings – providing information: The EAT has given guidance on the approach to be taken where a party to ET litigation asks the ET to make an order for the provision of information by the other party. (In this case, the claimant was seeking information from the employer about disabled employees and adjustments made for them as part of his own disability discrimination claim.) Confirming that the ET has the power to order the disclosure of information, the EAT concluded that the general test was essentially the same as for requests to disclose specific documents, involving an assessment of whether the information is necessary to deal with the claim fairly. However, it noted that practical issues could arise where information sought was not available in existing documents, or where finding it in documents involved substantial work. (Bari v. Richmond and Wandsworth Councils)

To read the full newsletter, download the PDF below.