The price for injured feelings just got higher

The Employment Appeal Tribunal (EAT) has increased the bands of damages that can be awarded for injury to feelings in discrimination cases. While all anti-discrimination legislation provides for awards for injury to feelings – the Equal Pay Act excepted – the legislation does not provide guidance on how such awards should be calculated.

Bands

In 2002, guidance was provided by the Court of Appeal in the case of Vento v Chief Constable of West Yorkshire Police. Three bands were set for potential awards, and for some time afterwards tribunals and courts stuck to these Vento bands when making awards for injury to feelings.

However, differences of approach then emerged. Case law requires that tribunals take account of the value of the sum in every-day life when making an award, and generally tribunals make such awards as they think just and equitable. It is not then surprising that some tribunals increased the upper limits of the Vento Bands to take account of inflation. Other tribunals declined to do so until higher courts made a ruling. Only the courts could increase the upper limits because the Vento Bands were a case law development – not set by statute or regulation.

Now the EAT has increased the Vento Bands, tribunals will once again approach awards for injury to feelings with consistency.

Compensation

So, how much can a successful claimant expect to get by way of an award for injury to feelings? The award is compensatory, not punitive, and is not dependent on financial loss. The claimant must show how much his/her feelings have been injured. Account is taken of the claimant’s vulnerability, personal characteristics, any connected medical condition, effect on him/her, the nature of the job, and how the respondent dealt with any grievance.

In 2008, across all discrimination strands, the average injury to feelings award was £6,612, 58% of awards fell into the low Vento band, and 36% in the middle.

Some £4,500 was awarded to a solicitor refused part-time working for childcare reasons – tribunals take account of awards for personal injury, and her hurt was compared to a minor leg/arm injury. A Polish man walked for an hour to a job interview but was refused work because he might return to Poland. He was awarded £1,000 as his feelings were not judged to be severely injured because he later applied for another job with the same employer.

So how can employers avoid cases arising, and best handle allegations of discrimination to avoid cases escalating?

A robustly implemented policy sets standards and warns employees that discriminatory behaviour won’t be tolerated. Training raises awareness, develops skills and promotes understanding that diversity issues have a wide-ranging impact in the business including handling performance, discipline and sickness and in social interactions.

A procedure gives a route by which complaints can be raised. Investigate allegations of discrimination promptly and thoroughly. If it’s possible to restore working relationships, then cases are contained, and the risk of claims minimised.

injury to feelings awards

Band Case type Vento New

bands maximum

Lower Less serious – £500 to £6,000

involving isolated £5,000

or one-off events

Middle Serious – £5,000 to £18,000

not meriting an £15,000

award in higher

band

Upper Most serious – £15,000 to £30,000

where there has £25,000

been a lengthy

harassment

campaign

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