By Tamar Burton
The liability judgment in Tirkey v Chandhok caught the attention of many legal commentators after the Employment Tribunal awarded Mrs Tirkey £183,773.53 for her National Minimum Wages claim alone. [Click here for Cloisters' blog on liability judgment.]
On 4 December 2015 the Employment Tribunal handed down its remedy judgment concerning Mrs Tirkey’s claims for injury to feelings, personal injury and financial losses.
At the remedy hearing the Tribunal considered the appropriate approach to the calculation of future losses under an illegal contract of employment, the application of the Acas Code of Practice in a domestic employment setting as well as provided observations on the applicability of exemplary damages in this context.
The Tribunal made an award of £35,000 for injury to feelings, which is thought to be one of the largest awards for non-pecuniary losses. This was comprised of an award of £27,500 for direct race discrimination and a distinct award of £7,500 for indirect religious discrimination. A separate personal injury award for £13,500 was also made for the psychiatric injury sustained by Mrs Tirkey as a result of her treatment by the Chandhoks.
The Tribunal made an award of aggravated damages of £7,500 on the basis that the Respondents’ defence of the claim had involved “cynical and deliberate” fabrications to the High Commission in India and the UK authorities about the renewal of visas. Further, the Respondents had consistently disregarded the Tribunal’s Orders for disclosure. The Tribunal also expressed “deep concern” that the Second Respondent had made statements to the local press two weeks after its liability judgment, maintaining allegations that the Tribunal had found to be false.
The Tribunal was not prepared to make an award for exemplary damages. It did not accept that the Rookes v Barnard  AC 1129 definition of oppressive, arbitrary or unconstitutional conduct by someone in a position of power or authority could be extended to these circumstances of domestic servitude. It also found that the Respondents’ conduct was not calculated to result in profit, despite the “cynical disregard” the Respondents held for Mrs Tirkey’s rights. It held that the Respondents still seem unable to accept there has been any wrong-doing on their part and they had not undertaken a risk/reward assessment: “the Respondents appeared to believe that they ran no risk at all.”
In relation to future losses, the Tribunal held that Mrs Tirkey’s employment had been manifestly unlawful as she worked 18 hours per day, 7 days per week. The Tribunal accepted the Claimant’s argument that the starting point, in the absence of any 48-hour week opt agreement, was a 48-hour week at the prevailing rate of the National Minimum Wage. It held that a 56-hour week was an appropriate basis for calculation. This was the number of hours the Respondents initially claimed the Claimant would be required to work when she accepted the offer of employment.
Lastly, the Tribunal did not find that the Acas Code of Practice could apply in these circumstances. The existence of a formal written grievance procedure in the context of domestic employment would have been excessive. The Tribunal considered that Mrs Tirkey’s letter before action sent by Islington Law Centre could not amount to a grievance in any event because the Acas Code was designed to resolve issues in the workplace; this letter was a post-termination complaint.
In total, Mrs Tirkey was awarded £83,762.61, in addition to the £183,773.53 previously awarded for her National Minimum Wage claim.