Aggravated damages

Aggravated damages are extra compensation an employment tribunal can award in a discrimination claim when the employer acted in an especially malicious, insulting or high-handed way that made your distress worse. They sit on top of the usual injury to feelings award. They are uncommon, but understanding when they apply — and how to plead them — can change the value of a claim.

Are aggravated damages available in all employment tribunal claims?

Aggravated damages are available in discrimination claims under the Equality Act 2010, and in some other tribunal claims where there is a discretion to award compensation for non-financial loss. They are not available in straightforward unfair dismissal claims, where compensation is assessed under the Employment Rights Act 1996 formula rather than equitable principles. The claim must be one where the tribunal has power to award injury to feelings compensation.

Can I get aggravated damages for disability discrimination?

Yes. Aggravated damages can be awarded in any successful discrimination claim under the Equality Act 2010, including disability, race, sex and age discrimination. The test is the same whatever the protected characteristic: the employer's conduct must have been high-handed, malicious, insulting or oppressive and made your distress worse.

What conduct might lead to an award of aggravated damages?

Tribunals have awarded aggravated damages where the employer dismissed an employee in a deliberately humiliating way, where the employer denied discrimination in proceedings while contemporaneous documents showed it clearly occurred, where the employer victimised or harassed the claimant after the original discriminatory act, or where witnesses gave evidence the tribunal found to be deliberately misleading. The key is that the employer's conduct, beyond the discrimination itself, made the claimant's distress significantly worse.

How do aggravated damages relate to the Vento bands for injury to feelings?

The Vento bands set the range for injury to feelings compensation: lower band for less serious cases, middle band for more serious ones, and upper band for the most grave — typically sustained campaigns of discrimination. Aggravated damages are a separate additional amount on top of the injury to feelings award. However, tribunals must avoid double-counting: if conduct that might justify aggravated damages has already pushed the injury to feelings award to the top of a band, the same conduct cannot be used again to justify aggravated damages.

How much are aggravated damages typically worth?

There is no fixed scale. Published tribunal decisions show awards ranging from a few hundred pounds in modest cases to several thousand in the most serious. A commonly cited range in reported EAT decisions is between around £1,000 and £5,000, though they can exceed this in particularly egregious cases. The amount must be proportionate to the additional distress caused by the aggravating conduct, and tribunals are expected to explain their reasoning.

Is there a maximum for aggravated damages in an employment tribunal?

No. There is no statutory cap or fixed scale for aggravated damages. The amount must be proportionate to the extra distress the aggravating conduct caused, and the tribunal must avoid counting the same conduct twice across the injury to feelings award and the aggravated element.

What is the difference between aggravated damages and punitive or exemplary damages?

Aggravated damages compensate you for extra distress caused by the way the employer behaved. Punitive, or exemplary, damages are meant to punish the wrongdoer, and they are not available in employment tribunal claims. If you want the tribunal to reflect how badly your employer behaved, aggravated damages are the route.

Can I claim aggravated damages if the employer defended the tribunal case aggressively?

Robust defence of tribunal proceedings is not, on its own, grounds for aggravated damages. An employer is entitled to contest a claim and test the evidence. What can give rise to aggravated damages is conduct in litigation that goes beyond legitimate defence: fabricating an alternative account, producing documents the tribunal finds to have been altered, or pursuing a strategy designed to maximise the claimant's distress rather than address the merits of the claim.

Do I need to plead aggravated damages separately?

Yes. You should identify in your ET1, or at least in your remedy schedule, that you are seeking aggravated damages and set out the specific conduct you rely on. A tribunal is unlikely to award them of its own motion if you have not asked for them. The schedule of loss or remedy submissions is the right place to set out the factual basis for the claim and an estimate of the additional compensation sought.

What aggravated damages are — and are not

All discrimination claims that succeed include a component for injury to feelings. The injury to feelings award compensates for the emotional harm — the distress, loss of dignity and upset — caused by the discriminatory treatment. It is assessed within the Vento bands: a lower band for less serious cases, a middle band for more substantial ones, and an upper band for the most grave, typically sustained campaigns of discrimination or treatment that fundamentally affects the claimant's life.

Aggravated damages go further. They are available where, on top of the discrimination itself, the employer's conduct was so malicious, insulting, oppressive or high-handed that it substantially compounded the distress caused. The concept comes from the common law of tort — cases involving trespass to the person, defamation and malicious prosecution — and was confirmed to be available in employment discrimination cases by the Employment Appeal Tribunal in Commissioner of Police of the Metropolis v Shaw.

The crucial point is that aggravated damages are not a separate head of compensation, as they would be in a civil court. In employment tribunal they are part of the compensation for non-financial loss — a factor that increases the overall amount, not an independent award alongside it. This creates two practical consequences. First, both the injury to feelings award and any aggravated element must be assessed without double-counting: conduct that has already pushed the injury to feelings figure to the top of a band cannot then be used again to justify a further aggravated damages addition. Second, the tribunal must give reasons for awarding aggravated damages and explain what specific conduct warranted them.

Exemplary or punitive damages — a different concept, designed to punish the defendant and deter similar conduct — are not available in employment tribunal proceedings. This is a common point of confusion. An employee who wants a tribunal to "send a message" to their employer will not get a punitive award; the most they can achieve is an aggravated element within the compensatory framework.

Marcus brings a race discrimination claim after being dismissed. During the tribunal hearing, the employer's HR director gives evidence that Marcus was dismissed for poor performance. The tribunal finds this evidence deliberately misleading: the disciplinary file, assembled after Marcus raised a grievance about racial comments, contained no performance concerns until the month after his grievance. His pre-grievance appraisals were consistently positive.

The tribunal finds race discrimination proved and assesses injury to feelings in the middle Vento band — £18,000. It then considers whether the way the employer conducted itself in the proceedings warrants aggravated damages. The tribunal finds it does: the fabrication of a performance narrative during litigation, and the decision to put the HR director in the witness box to defend it, significantly added to Marcus's distress during a year of proceedings.

Injury to feelings (middle Vento band)

Aggravated damages (litigation conduct)

Total non-financial loss

The tribunal is careful to avoid double-counting. The aggravating conduct — the false narrative constructed in litigation — is distinct from the original discriminatory act. It did not already inflate the injury to feelings figure. The additional £4,000 represents the further distress caused by spending a year being told, officially, that you were dismissed for a reason the tribunal has found to be invented.

Protected characteristics

Direct discrimination

Equality Act 2010, s.124

Commissioner of Police of the Metropolis v Shaw [2012] ICR 464 — EAT on criteria for aggravated damages

Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871

Your rights under the Equality Act 2010

Aggravated damages in employment tribunal claims

Aggravated damages in employment tribunal discrimination claims: what triggers them, whether there is a maximum, and how they differ from punitive damages.

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