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The Employment Appeal Tribunal has recently stressed that a claim brought under the EPA is a claim in contract based on the term being implied into the contract. No compensation for non-economic loss, eg for injury to feelings or exemplary damages, can therefore be recovered. This is in contrast to a claim for compensation under any of the discrimination statutes, as such claims are in respect of statutory torts in relation to which compensation for injury to feelings is recoverable.
Impact
Where an employee is complaining about a lack of equality of treatment in terms of the pay, bonus or benefits that she receives compared with a male colleague doing the same job, it is important to identify the type of claim she may have in order to asses the potential financial exposure. If she is complaining about a bonus that she is contractually entitled to, as the complaint is about a term of her contract, her complaint must be brought by way of an equal pay claim. She will only be able to claim compensation for the difference in the value of the two bonuses.
If, however, the employer only operates a discretionary bonus scheme to which there is no contractual entitlement, then her complaint must be brought as a sex discrimination claim. This will be more expensive from the employer's perspective, as she will also be able to claim compensation for the injury to feelings she may have suffered as a consequence of the discrimination. Compensation for injury to feelings ranges broadly from £500 to £25,000.
E-mail: tania.stevenson@cliffordchance.com;
Tel: 020 7006 8938.
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