Introduction

The case of Ministry of Defence (MOD) v. Fletcher ([2009] UKEAT 0044_09_0910) centers on Ms. Kerry Fletcher, a former member of the British Army, who alleged direct discrimination and harassment under the Sex Discrimination Act 1975, as well as victimisation under the Employment Equality (Sexual Orientation) Regulations 2003. Following a lengthy Employment Tribunal (ET) process, Ms. Fletcher was initially awarded substantial damages for injury to feelings, aggravated damages, exemplary damages, and costs. The MOD appealed against aspects of the remedy, particularly contesting the basis and quantum of aggravated and exemplary damages.

Summary of the Judgment

The Employment Tribunal initially awarded Ms. Fletcher:

• £30,000 for injury to feelings
• £20,000 in aggravated damages
• £50,000 in exemplary damages
• £10,000 in costs
• Additional sums for loss of earnings and pension entitlement

The MOD appealed against the awards of aggravated and exemplary damages, raising concerns about potential overlap and double recovery, as well as the proportionality of the awards. The Employment Appeal Tribunal (EAT) scrutinized these aspects, ultimately allowing the MOD's appeal by reducing the aggravated damages to £8,000 and setting aside the exemplary damages entirely.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents influencing the court's decision:

• Rookes v Barnard (1964): Established the categories for awarding exemplary damages.
• Zaiwalla & Co v Walia (2002): Affirmed the availability of aggravated damages for oppressive conduct in legal proceedings.
• Vento v Chief Constable (2003): Provided guidelines on compensation bands for injury to feelings.
• Armitage, Marston and HM Prison Service v Johnson (1997): Demonstrated awards for aggravated damages in discrimination contexts.
• Kuddus v Chief Constable of Leicestershire (2002): Clarified the threshold for exemplary damages concerning oppressive governmental actions.
• Rowlands v Chief Constable of Merseyside Police (2006) and Takitota v Attorney General (2009): Further defined the criteria and quantum for exemplary damages.

Legal Reasoning

The court's legal reasoning focused on several critical factors:

• Avoidance of Double Recovery: Ensuring that the total compensation for non-pecuniary loss did not exceed what is just and equitable, preventing overlapping compensations for the same wrong.
• Proportionality: Assessing whether the awards of aggravated and exemplary damages were proportionate to the injury suffered and the conduct of the MOD.
• Criteria for Aggravated Damages: Determining if the MOD's conduct exceeded mere oppressive behavior to warrant aggravated damages, referencing the severity of the misconduct as per established precedents.
• Criteria for Exemplary Damages: Evaluating whether the MOD's actions fit within the stringent criteria for exemplary damages, particularly the first category as outlined in Rookes v Barnard, which requires oppressive, arbitrary, or unconstitutional action by government servants.

Impact

This judgment has significant implications for future employment discrimination cases:

• Clarification on Damages: It provides clearer boundaries on the applicability and limits of aggravated and exemplary damages, emphasizing the necessity to prevent double recovery.
• Emphasis on Proportionality: Reinforces that compensatory awards must align with the severity of the misconduct and the harm inflicted, discouraging excessive compensation.
• Guidance on Exemplary Damages: Sets a high threshold for awarding exemplary damages in employment contexts, reserving them for the most egregious cases involving public authority misconduct.
• Procedural Standards: Highlights the importance of fair and appropriate conduct during legal proceedings, influencing how defense strategies are formulated in discrimination claims.

Complex Concepts Simplified

Aggravated Damages

Aggravated damages are additional compensatory awards on top of general damages, intended to compensate for the manner in which an injury was inflicted. They recognize emotional distress or humiliation caused by the defendant's conduct.

Exemplary Damages

Exemplary damages, also known as punitive damages, aim to punish the defendant for particularly egregious conduct and deter similar behavior in the future. They are not compensatory but serve a punitive function.

Double Recovery

Double recovery occurs when a claimant receives compensation more than once for the same injury or wrongdoing. Courts must ensure that compensatory damages across different heads (e.g., injury to feelings and aggravated damages) do not overlap to prevent unjust enrichment.

Injury to Feelings

This refers to the emotional distress suffered by a claimant due to discriminatory or harassing behavior in the workplace. The Vento guidelines categorize compensation into bands based on the severity of the emotional harm.

Conclusion

The Ministry of Defence v. Fletcher judgment underscores the judiciary's commitment to equitable compensation in employment discrimination cases while maintaining stringent controls to prevent excessive or duplicated awards. By recalibrating the awards for aggravated and exemplary damages, the Employment Appeal Tribunal reinforced the necessity for proportionality and clear delineation between different compensatory heads. This case serves as a pivotal reference for legal practitioners in navigating the complexities of damages in discrimination claims, ensuring that compensation aligns with both the gravity of the misconduct and established legal standards.

In essence, the judgment balances the need to adequately compensate victims of discrimination and harassment with the imperative to uphold fair and reasonable compensation principles, thereby shaping the landscape of employment law remedies in the United Kingdom.