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Axed worker's 'upset feelings' didn't entitle her to aggravated damages

By Niall McMullan, associate partner

In the case of Maria McKeith v The Committee for the time being of Ardoyne Association, the Tribunal found Ms McKeith was unlawfully dismissed by her employer on March 27, 2015.

She had brought proceedings against the association for claims of unfair dismissal and disability discrimination by association. The tribunal held that there had been "no convincing explanation" for her selection for redundancy.

The respondent appealed to the Northern Ireland Court of Appeal (NICA). This appeal was dismissed and the matter referred back to the tribunal to determine the award.

The claimant sought an award to include injury to feelings, psychiatric injury and loss of earnings.

As part of the injury to feelings award, the claimant sought an amount by way of 'aggravated damages'.

Aggravated damages can be awarded by the tribunal to provide compensation where the respondent/defendant may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination.

Ms McKeith in this case claimed aggravated damages on the following grounds: (1) The "disturbing pattern" of documentation which was produced late by the respondent during the tribunal hearing; (2) The respondent's late application to the NICA that the tribunal had wrongly recorded witnesses' evidence during the original tribunal hearing; (3) A media report of the tribunal decision that appeared in the press with the heading, "Boss got rid of worker over her disabled daughter" and Facebook posts by the respondent stating that it did "not accept the decision by the court on discrimination"; (4) The subject of evidence given by the claimant's mother.

The tribunal dismissed all claims for aggravated damages.

Despite describing the respondent's approach to releasing documentation as "careless, disinteresting, and less than wholehearted", the tribunal was not satisfied that their actions were high-handed, malicious, insulting or oppressive "to a degree that would justify an award of aggravated damages".

The second point was concerned with the respondent obtaining a copy of the recording and transcript of the original tribunal hearing and querying the veracity of the tribunal's decision relating to one witness's evidence. It turned out there had been a gap within the audio recording of the original hearing. The tribunal found that this was a "genuine mistake" by the respondents.

The tribunal stated "the contents of the article cannot be laid at the door of the respondents".

In response to the claimant's referral to Facebook posts by the respondent, the tribunal stated: "While individuals may feel upset that a tribunal's decision is not automatically and without equivocation fully accepted by a losing party, that is hardly a matter for aggravated damages."

Further, the tribunal went on to state: "It is worth remembering that in a press release relating to a different decision of this tribunal which had found that the Equality Commission had indirectly discriminated against an employee on the grounds of gender, the Equality Commission expressed itself 'disappointed' at the decision of the tribunal and stated that it was 'currently giving careful consideration of the tribunal's decision'."

The claimant's mother had been employed by Ligoniel Improvement Association, a partner of the respondent.

She alleged that she had been advised by her employer that the case could "close Ardoyne Association down" as there was no money for the case.

The tribunal did not dispute whether or not this conversation took place, however, in the absence of evidence, they concluded on the balance of probabilities, the respondents were not involved.

Ms McKeith was awarded £18,886.31 made up of £10,000 for injury to feelings including psychiatric injury. No money was awarded for aggravated damages.

Niall McMullan is an Associate Partner in Worthingtons Solicitors, Belfast and specialises in Employment Law. He can be contacted on 028 9043 4015

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