The case of Ministry of Defence v Fletcher got a great deal of media attention at first instance (see for example here), mainly because the claimant was a female soldier who was awarded £186,895.52 for sexual harassment and victimisation. Of this, £100,000 represented injury to feelings, including £30,000 for the upper band of Vento adjusted for inflation, £20,000 for aggravated damages, and £50,000 for exemplary damages. It comes as absolutely no surprise that the Ministry of Defence decided to appeal.

There was no dispute that exemplary damages can be awarded in discrimination cases but only in two situations, the relevant one here being “oppressive, arbitrary or unconstitutional action by servants of government.” It has been established that they must only be awarded in exceptional circumstances where the wrongdoing is conscious and contumelious. In this case, the Ministry of Defence had been heavily criticised for its systematic failure to provide redress for the complaints of Ms. Fletcher but this was not considered to be serious enough by the Employment Appeal Tribunal to justify such an award.

There were two interesting obiter remarks by Justice Slade. Firstly, she rejected an alternative ground of appeal that systematic failures could not be taken into account because they had not been pleaded. She stated that “remedy is at large” and anything can be taken into account so long as findings of fact have been made. She also said that, even if exemplary damages had been appropriate, they would have been reduced to £7,500. An award of £50,000 is considered to be the maximum for cases of wrongful arrest and false imprisonment and a failure to provide redress is quite simply not comparable.

Although Ms. Fletcher was undoubtedly treated appallingly, this decision is equally undoubtedly correct. As noted elsewhere in the judgment, £50,000 is a typical award for moderate brain injury or for severe post-traumatic stress disorder and so £100,000 for injury to feelings is excessive. In any event, even allowing for the aggravated damages being reduced to £8,000 and a substantial reduction of interest as a result, the overall compensation will remain in six figures despite a total reduction of around £70,000.