In many, but not all, discrimination claims, the applicant is able to obtain
not just an award of compensation for loss, but also an award specifically to
compensate for injury to feelings. Thus, for example, injury to feelings awards
are commonly made in race, sex and disability cases, although they are not
available to applicants bringing cases based upon the part-time and fixed-term
workers regulations.
The principles
The tribunal is supposed to adopt the principle of ‘restitution’ when
considering injury to feelings awards. In other words, the award should aim to
put the applicant in the position he or she should have been in, had the
discrimination not taken place. Tribunals need to take into account issues of
causation, and remoteness, although it is quite clear that a strong element of
subjectivity exists in the area of injury to feelings awards – in many ways,
discriminators take their victims as they find them.
Applicants claiming an injury to feelings award have to show that their
feelings have been injured, although this is usually done simply by witness
statement evidence.
Injury to feelings awards are compensatory, not punitive, although if an
alleged discriminator conducts legal proceedings in a way which aggravates the
distress to the applicant, then aggravated damages are available. Leading cases
confirm that awards need to be high enough to command the respect of employers,
who are the likely discriminators, but not so high that they are seen as
‘untaxed riches’ and bring the legal process into disrepute as an example of
the ‘compensation culture’.
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The current case law position is that there are two categories of injury to
feelings awards: higher and lower. For normal discriminatory acts, which are
serious, but not part of a sustained campaign against the victim, the injury to
feelings award could be as low as £750 (which is now generally regarded as
being the minimum possible award) up to about £10,000. Where prolonged
campaigns of discrimination and/or harassment have taken place, and/or
management has shown a sustained disregard or ineptitude in dealing with these
issues, the higher category comes into play, which would normally mean awards
of up to £25,000, but has resulted in awards in excess of £100,000 for
particularly bad cases. However, the average is approximately £5,000.
Compensation is also available for intentional and unintentional indirect
discrimination in the sex and equal pay areas. However, in race cases, no
compensation is available for unintentional indirect discrimination. An award
of compensation for injury to feelings can only be challenged if the tribunal
has made an error of law in adopting the wrong assessment principles or reaching
a result (on correct principles) which no tribunal could reasonably have
arrived at.
