Appeal court gives guidance on injury to feelings awards

Tribunals are given guidelines to set realistic boundaries when determining
compensation claims for injured feelings in sex discrimination cases

The Court of Appeal’s (CA) decision in the case of Vento v Chief Constable
of West Yorkshire Police is set to stand as a leading authority on the
assessment of compensation for injury to feelings in cases of sex
discrimination.

Vento was subjected to a campaign of bullying by her fellow officers which
led to clinical depression and suicidal impulses. She was later dismissed for
alleged dishonesty and poor performance.

Having been successful in her tribunal claim for sex discrimination
(including a claim relating to the dismissal), Vento was awarded £50,000 by way
of injury to feelings. She was awarded a further £15,000 in aggravated damages
to reflect the manner of dismissal (the employer compounded the situation
through its high-handed, oppressive actions) and an award of £9,000 for
psychiatric illness.

In considering the Police Authority’s appeal against the level of awards for
injury to feelings the CA set out three bands of compensation it felt should be
applied in assessing such an award. These are:

– A top band of £15,000-£25,000 to be awarded only in the most serious cases
– for example, where there has been a lengthy campaign of discrimination

– A middle band of £5,000-£15,000 for serious cases that do not justify an
award in the top band

– A bottom band of £500-£5,000 for less serious cases where, for example,
there has been an isolated incident.

Most cases will fall into the latter category.

The CA felt these bands of compensation should be sufficiently broad to enable
an employment tribunal to deal with the particular facts of any claim of sex
discrimination. The £500 cut-off reflects the view that any lower figure would
necessarily represent insufficient recognition of the injury to feelings caused
by unlawful discrimination.

The CA declared that the award of £50,000 to Vento was an error of law and
it was reduced to £18,000. The aggravated damages award remained at £5,000 as
reduced by the EAT.

By way of further clarification, the CA referred to the case of McConnell v
Northern Ireland Police Authority. It re-emphasised that in cases where there
is an element of personal injury, such as psychiatric illness, there should be
no double recovery of compensation. Aggravated damages are to be treated as
part of the award for injury to feelings and not as a separate damage.

Finally, the CA also noted that when making awards for personal injury
elements within the injury to feelings category of a discrimination claim,
employment tribunals should be mindful of the level of awards made by the civil
courts in personal injury claims. It should ensure that the overall
compensation package does not create awkward inconsistencies.

By providing tribunals with guidelines on the assessment of compensation for
injury to feelings, the CA has also given assistance in assessing the potential
liabilities in a case.

Parties will now be able to determine realistic boundaries when negotiating
a possible settlement. Where a case goes to tribunal and an award is
subsequently made, fewer appeals are likely to succeed in respect of these
awards.

It will be easier to establish that an award placed in the wrong band is an
error of law than to argue that the placement within a band is so wrong as to
succeed in an appeal.

With a previous absence of direction on the assessment of damages in this
area, the guidance will be welcome. It should also be a reminder to employers
to take stock and ensure their own policies and procedures are properly and
swiftly implemented so that any injury is limited to the lowest possible band.

By Sue Nickson, Head of employment law, Hammonds

Comments are closed.