Making It Worse: Aggravated Damages After Khans Solicitors v Kaiser

The remedy judgment gave Ms Kaiser £109,020.64. The firm that had employed her appealed £5,672.56 of it. When the appeal came on in the Rolls Building on 2 September 2026, more than two years after the remedy hearing, none of the £103,000 that was never in dispute had been paid. The claimant, appearing in person, had taken no step to enforce it. HHJ Tayler opened the hearing by asking why.

The appeal itself was about the £5,000.

In Khans Solicitors v Kaiser [2026] EAT 137 the Deputy President remitted an award of aggravated damages because the tribunal had not said what the aggravation was or what additional injury it had caused. HHJ Tayler notes twice that the award was modest and that he has been careful not to be hypercritical. Aggravated damages require three findings: an additional aggravating factor, an increased injury, and a causal link between the two. The tribunal’s reasons contained the first only in outline and the other two not at all.

The award

Ms Kaiser had worked for the firm as a paralegal in 2013 and 2014 and returned in April 2019, hoping to qualify as a solicitor. She had glaucoma and dry eyes, and anxiety and depression diagnosed in 2018. The tribunal found that the firm refused her training and then dismissed her because of something arising from disability, failed to provide a larger screen and an ergonomic chair, and harassed her on grounds of sex: the practice manager told her that if she did not wear a scarf she might find it easier to attract men. The senior partner dismissed her when she told him she had just been diagnosed with a further condition. The dismissal was also automatically unfair, for asserting the statutory right to be paid, because in twenty-two months she had never received a full month’s wages.

Injury to feelings was assessed at £25,000, which the tribunal placed at the top end of the middle band in Vento v Chief Constable of West Yorkshire Police (No.2) [2002] EWCA Civ 1871 as uprated for a claim presented in 2021, when that band ran from £9,100 to £27,400, on findings that the treatment had caused “upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness and exacerbated stress and depression” over an extended period, and on the finding that she had given up on qualifying. Aggravated damages of £5,000 followed, for four stated reasons. The most serious, the tribunal said, was that the discriminator was a firm of solicitors that advises the public on employment law. The harasser was the practice manager, a person with influence in the business; complaints to the senior partner and others went nowhere. All the complaints were treated in a trivial way, with no evidence of any investigation or of any step taken against the practice manager. Lastly, the senior partner, himself a solicitor, had dismissed her on hearing of the new diagnosis.

Three requirements

The self-direction at [10] is the passage practitioners will lift. Aggravated damages are a species of injury to feelings. They are available only where there is an additional aggravating factor, beyond what the injury to feelings award already compensates; where that factor has caused increased injury; and where the tribunal finds the causal link between the two. HHJ Tayler calls the third the causation requirement: the tribunal’s reasons never mention it.

None of this is new. In Alexander v Home Office [1988] ICR 685 May LJ took the phrase “high-handed, malicious, insulting or oppressive” from the defamation cases, together with Lord Diplock’s three heads of damages at large, the second of which is additional compensation for injured feelings “justifiably heightened by the manner in which or motive for which the defendant did it”. Armitage v Johnson [1997] ICR 275 settled that the head is available for the statutory torts. HM Prison Service v Salmon [2001] IRLR 425 supplied the limit: aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act on the claimant. Commissioner of Police of the Metropolis v Shaw [2012] ICR 464 then turned the case law into the passage every remedy skeleton now quotes. Compensatory, never punitive. Three categories: manner, motive, and subsequent conduct. One ultimate question, at [24]: “what additional distress was caused to this particular claimant, in the particular circumstances of this case, by the aggravating feature(s) in question?”

Underhill J also said, at [20] of Shaw, why the point has to keep being made. The facts that attract a claim for aggravated damages are usually facts at which a tribunal is rightly indignant: the vehicle for that indignation is what the tribunal says about the employer, not what it orders the employer to pay. The analysis in Kaiser is that sentence applied.

The Shaw-Kaiser three-step test

Where the reasons failed

The “most serious aggravating factor”, that the discriminator was a firm of solicitors advising the public on employment law, is dealt with at [22]. It appeared to be no more than the tribunal expressing its displeasure that a firm of solicitors should have treated an employee so badly, which is a punitive basis for an award.^[1] The status of the respondent could be relevant, but only through a finding of fact that it produced high-handed or oppressive conduct, for instance that the firm knew it was acting unlawfully and went ahead anyway, with the further finding that this increased the injury to the claimant. No such finding was made. The one earlier case in which a firm of solicitors paid aggravated damages, Zaiwalla and Co v Walia [2002] IRLR 697, got there through the way the firm ran its defence, on findings about what that conduct did to the claimant, and not through what the firm was.

The other three reasons fail in the same way. The practice manager’s influence was noted without any explanation of how it aggravated the injury; the asymmetry of power between harasser and victim is in any event a factor for band placement under Eddie Stobart Ltd v Graham [2025] EAT 14, and was presumably already inside the £25,000. The complaints “to no avail” were recorded without a finding of how being ignored made the injury worse, or of what “treated in a trivial way” meant on the facts. The absence of any information about steps taken against the practice manager could found an award, but only on a finding that nothing had been done and that the claimant’s injury increased as a result. The senior partner’s dismissal of her on hearing of the diagnosis was the discriminatory act itself; the tribunal did not say what in its manner or motive added to the injury the £25,000 already covered.

The tribunal’s self-direction had cited Armitage and Salmon for the proposition that treating a complaint as trivial can aggravate. It had not cited the sentence in Salmon about extent, and nothing in it showed an understanding that increased injury had to be caused by the additional factor. At [26] that is identified as the more important failure. Conduct that could amount to an aggravating factor had been identified. The step from conduct to injury had not been taken. The claimant, who was unrepresented, had not ensured that the factors were additional to what the injury to feelings award already compensated.

Why does this keep happening? The £25,000 paragraph and the £5,000 paragraph in the Kaiser remedy judgment were written by the same tribunal within a page of each other: the facts in the first do most of the work the second needed. Paragraph 107 records that she trusted the firm because she had worked there before, that she kept working while unpaid because they had promised to certify her training, and went in at weekends in the hope of qualifying. A paralegal who wants to become a solicitor, working unpaid for solicitors who advise on employment law, is a claimant whose sense of injury a tribunal could readily find heightened by who the discriminators were. The tribunal put that material under injury to feelings, then charged the firm’s status again under aggravation without saying what was new. Underhill J’s warning at [23] of Shaw about compensating the same loss under both heads was written for this.

I have pleaded aggravated damages by listing the employer’s worst conduct and leaving the tribunal to infer the rest. Kaiser says the inference will not do: the losing party on that point is as likely to be a claimant whose award is remitted as a respondent whose award is upheld.

Underhill J conceded at [23] of Shaw that the line between the two heads will always be blurred, because the injury from the act and the injury from its aggravation cannot be separated with any precision. HHJ Tayler accepts as much. His suggestion at [20] is that a single award for injury to feelings, stating that account has been taken of the identified aggravating features, will often be the better course because it removes the double-counting risk. HHJ Peter Clark had said as much in ICTS (UK) Ltd v Tchoula [2000] ICR 1191: a single award or a split one is a matter of form rather than substance, and the single award gives a respondent less to appeal.

The EAT did not substitute its own answer. Whether any award should be made, and in what sum, was not a question with only one possible answer, so Jafri v Lincoln College [2014] EWCA Civ 449 required remission. It went back to the same tribunal under Sinclair Roche & Temperley v Heard [2004] IRLR 763, because numerous detailed findings stood unchallenged and the tribunal that made them was better placed to decide what, if anything, they added.

The £672.56

The second ground concerned a sum the tribunal had placed under unfair dismissal: the difference between statutory sick pay and full net pay for four of the eight weeks she was off sick before dismissal. There was no finding of a contractual right to sick pay and no basis for the sum as unfair dismissal compensation. The firm accepted that the reasoning was really that the absence flowed from the discrimination, which can ground an award under the Equality Act 2010. What was missing was the assessment. The tribunal found it likely that she would not have been off sick but for the discrimination, then found that she would have been off with Covid in any event from late December 2020, then awarded four weeks without saying why four. The remitted exercise at [32] is a loss-of-chance calculation: the chance she would have been at work before Covid absent the discrimination, applied to the shortfall for that period, and then the chance, if any, that she would have been at work after contracting it, applied to the remainder.

Fourteen days

Outside the grounds, HHJ Tayler added a passage on enforcement. Rule 64 of the Employment Tribunal Procedure Rules 2024 requires a party to comply with a judgment for the payment of money within 14 days unless the tribunal fixes another date or grants a stay. An appeal to the EAT is not a stay: [35]. Section 15 of the Employment Tribunals Act 1996 makes a registered award recoverable as if it were a county court order, and where an appeal is pending the county court may stay enforcement, but it may equally require a payment into court or confine the stay to the part of the award under challenge. The claimant was advised to take advice.

In practice

• Plead aggravated damages by factor, and for each factor plead the additional distress and the link. A schedule that lists the employer’s worst conduct and asks for £5,000 is a list of aggravating factors; it becomes a claim for aggravated damages when the increased injury is pleaded too.
• Put the causation evidence in the witness statement, factor by factor: what the claimant learned, when, and what it did to her that the discrimination itself had not already done. Motive aggravates only if the claimant knew of it, as Shaw says at [22(b)].
• Check the injury to feelings paragraph before drafting the aggravation paragraph. A fact used in the first cannot be re-used in the second without a finding of what it adds. Power imbalance, in particular, is a band-placement factor and belongs in the first.
• For respondents, a reason that reads as a judgment on the employer’s character rather than on the claimant’s injury is now squarely appealable. The ground is reasons, not perversity, so the likely result is remission to the same tribunal, as here, rather than the award being struck out.
• Consider inviting a single injury to feelings award that records the aggravating features. HHJ Tayler commends it at [20]; it avoids double-counting and gives an appellant less to aim at.
• Sick pay shortfall claims in discrimination cases are loss-of-chance claims. Plead the period, the counterfactual and the percentage; do not leave the tribunal to pick the weeks.
• Money judgments are payable within 14 days and an appeal does not stay them. Where an appellant sits on an undisputed sum, register the award in the county court and enforce, resisting any stay wider than the part actually under appeal.

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Alex acts in disputes like this one for claimants and respondents, instructed by solicitors or by direct access. How to instruct him or email the clerks.