Aggravated Damages: EAT Clarifies the Need for Clear Reasoning

In employment tribunal litigation, aggravated damages may be awarded where an employer has acted in a high-handed, malicious, insulting, or oppressive manner. Their purpose is compensatory rather than punitive, providing redress for any additional distress or injury suffered by the claimant as a result of such conduct.

In Khans Solicitors v Kaiser [2026] EAT 137, the Employment Appeal Tribunal (EAT) reinforced the importance of tribunals clearly explaining the basis for any award of aggravated damages. The EAT concluded that the Employment Tribunal had failed to provide sufficient reasoning for its award and remitted the issue to the same Tribunal for reconsideration.

The claimant, a paralegal employed by the respondent law firm, succeeded in claims for unfair dismissal, disability discrimination and sex-related harassment. As part of the remedy, the Employment Tribunal awarded £25,000 for injury to feelings and a further £5,000 in aggravated damages. The respondent appealed, challenging several aspects of the remedy judgment, including the aggravated damages award.

In its decision, the EAT emphasised that two key elements must be present before aggravated damages can be awarded:

1. An aggravating factor that is distinct from the conduct already compensated through the injury to feelings award; and
2. A clear causal connection between that aggravating factor and the additional injury or distress suffered by the claimant.

The EAT identified several shortcomings in the Tribunal’s reasoning. Most notably, the Tribunal considered the respondent’s status as a firm of solicitors specialising in employment law to be the most significant aggravating factor. However, it did not explain why this characteristic, in itself, amounted to aggravating conduct or how it caused the claimant any additional injury.

Similarly, the Tribunal referred to the claimant’s complaints having been treated in a “trivial way” and criticised the respondent’s failure to address the discriminatory conduct and circumstances surrounding the dismissal. However, it did not sufficiently explain why these findings justified an award of aggravated damages or demonstrate how they resulted in additional harm beyond that already compensated by the injury to feelings award.

This decision serves as a useful reminder that aggravated damages are not a routine addition to successful discrimination claims. Tribunals must clearly identify the aggravating conduct, distinguish it from matters already reflected in the injury to feelings award, and explain the link between that conduct and the increased injury suffered by the claimant.