Injury to feelings

For straightforward unfair dismissal claims, there is no award given for injury to feelings. In the discrimination arena, however, injury to feelings is specifically catered for in the relevant statutes. Apart from being a sensible measure in itself, it is often the case in discrimination claims that there is no financial loss as such, since a claim can be brought while the claimant remains in employment. This article looks at how awards for injury to feelings have been changing recently.

Over the years, it has gradually become more and more common for a tribunal to look at awards for injury to feelings in three categories – at the bottom, middle or top end of the scale. But there are no specific scales used.

In the Equal Opportunities Review survey of compensation awards for 1999, average awards for injury to feelings increased in each category from the previous year, from £2,543 to £3,635 for disability discrimination (43 per cent), from £3,730 to £5,297 for race discrimination (42 per cent), and from £2,907 to £3,787 for sex discrimination (30 per cent). Interestingly, awards for injury to feelings accounted for about half of the total compensation awarded in sex and race cases, and just over a third of the compensation in disability cases. Given the increasing emphasis on injury to feelings – some would call the “compensation culture” – these average awards are likely to rise at similar rates in future years.

The average awards may come as a surprise to those used to reading about discrimination cases in the tabloid press. The highest award for injury to feelings in 1999 in a sex discrimination case was £37,500, and the highest in a race case £30,000. The highest in a disability case was £15,000. In general, but very loosely, tribunals will award £500-1,000 in a successful claim which is not deemed to be serious, about £5,000 in cases deemed to be serious but not extreme, and the type of top-end figures mentioned above for extreme cases. Perhaps understandably, the highest average awards are in harassment cases, typically where injury to feelings is most acute.

The EAT has made it clear that injury to feelings awards are so fundamental in discrimination cases that they are almost inevitable. But they are not automatic. They should be compensatory and just to both parties, compensating fully without punishing the employer. Feelings of indignation at the employer’s conduct

should not be allowed the inflate the award. And they should bear some broad general similarity to the range of awards in personal injury cases.

There are two areas where such awards can be inflated – aggravated damages are available where an employer has behaved in a high-handed, malicious, insulting or oppressive manner and compensation for any mental impairment amounting to a personal injury can also be awarded by a tribunal.