A former Department for Work and Pensions employee recently received almost £400,000 in compensation following age and race discrimination, which caused her ongoing distress. But how did the tribunal decide upon this staggering award? Oliver Weiss takes a closer look at the case.
Awards for injury to feelings made by employment tribunals are intended to provide compensation unrelated to financial loss; for the degree of hurt, humiliation or distress an employee may have suffered as a result of discriminatory conduct.
The recent decision of Giwa-Amu v Department for Work and Pensions attracted a lot of publicity because of the very high award for injury to feelings she received after winning her race and age discrimination case.
This award was assessed taking into account the well-established guidance in the case of “Vento”, which categorises awards into the following bands:
- The lower Vento band – for less serious cases such as where the act of discrimination is an isolated or one off occurrence
- The middle Vento band – for serious cases which do not merit an award in the highest band
- The top Vento band – for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment. In exceptional circumstances, this band can be exceeded.
For claims presented on or after 6 April 2020, the Vento bands increased as follows:
- Lower band: £900 to £9,000
- Middle band: £9,000 to £27,000
- Upper band: £27,000 to £45,000.
What did the employment tribunal take into account when placing Ms Giwa-Amu’s injury to feelings award in the highest Vento band and what are the implications for employers?
Ms Giwa-Amu was appointed as an administrative officer for the DWP on an 18-month fixed-term contract. She was of Nigerian-Welsh origin and was the only non-white trainee in a group of nine. She was 55 years old and the only trainee over the age of 50.
She started her induction on 13 February 2017 and this was due to finish on 17 March 2017. Between mid-February and early March 2017, numerous incidents occurred within the training group which resulted in Ms Giwa-Amu being signed-off with work-related stress and depression. She was dismissed in October that year for not being able to return to work.
Ms Giwa-Amu submitted an employment tribunal claim in June 2017 for race and age discrimination. The DWP subsequently withheld Ms Giwa-Amu’s final pay cheque while she was living on £55 per week and in serious financial hardship, only to wrongly demand repayment of £2,000 in January 2018.
The employment tribunal upheld 12 of the 19 complaints of direct discrimination, victimisation or harassment relevant to race and or age. It found that the DWP staff had deliberately created a “hostile environment” for Ms Giwa-Amu.
It awarded Ms Giwa-Amu £386,000 compensation. This included injury to feelings of £42,809, which included interest and aggravated damages of £7,500.
Aggravated damages
The employment tribunal found that there were a number of acts undertaken in an insulting manner, the motive of which was to deliberately humiliate Ms Giwa-Amu and to create a hostile environment for her, causing additional stress. In fact, she was unable to be in the same room as the perpetrators to complete the last five days of training.
It also found that a self-serving document produced by the trainer, which was created after Ms Giwa-Amu raised concerns, had caused her exceptional upset when she learned of its existence during the remedy hearing. Further, the DWP’s delay in providing her final wages “rubbed salt into her wounds” and this was compounded when the DWP put Ms Giwa-Amu under “extreme pressure” by demands for her to repay in excess of £2,000 at a time when she was on a very low income and the actual debt was £738.27.
This case should act as a warning to employers that tribunals are willing to utilise the upper Vento band in serious cases.”
These aggravating features caused additional distress, hurt and anxiety which led to the £7,500 award.
Vento band consideration
In determining the appropriate Vento band for the injury to feelings award, the employment tribunal paid regard to evidence from Ms Giwa-Amu about the impact of the discrimination she experienced. Ms Giwa-Amu felt entirely rejected, ridiculed and isolated from the rest of the training group. This was compounded by anxiety due to the subsequent delay in paying her final wages.
The tribunal considered previous case law and noted that “a comparative exercise has to be treated with some caution”, as the amount of injury to feelings will depend on the particular facts of each case.
It concluded that Ms Giwa-Amu was distressed not by a single individual’s actions, but by a number of people’s discriminatory actions – this caused her far greater harm and injury to feelings, as she felt ostracised from the group. Not only that, but when she reported her concerns about being bullied, managers breached her confidence by talking to staff about it. This justified an award in the Vento top band.
Advice for employers
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This case should act as a warning to employers that tribunals are willing to utilise the upper Vento band in serious cases where there has been a significant and ongoing impact on the employee, such as with Ms Giwa-Amu, who was still suffering from stress and anxiety nearly two and a half years later.
Employers need clear policies and procedures for dealing with complaints of bullying and harassment. Staff should be fully aware of what constitutes unacceptable conduct and that disciplinary action will follow when bullying and harassment has occurred. Complaints should be dealt with promptly and in confidence. Otherwise, as in Ms Giwa-Amu’s case, there is the risk of ongoing harm to the individual.
6 comments
how does one ‘evidence’ injury to feelings? You can only provide so much medical evidence to corroborate what you have been through but surely the majority of it banks on witness statement?
Witnesses are not always reliable as people collaborate on stories and therefore medical evidence is the only fact that is needed It can not be manipulated like a witness statement
Could one argue that an employers failure to make reasonable adjustments exasperated ones condition (for example their condition worsened) and in very serious cases where it caused physical or mental impacts such as say a stroke or heart attack? Can it be argued that there was a causation chain?
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