What is the cost of injury to feelings? Increase in compensation guidelines.

Claimants who succeed in a claim of discrimination in the Employment Tribunal are able to claim an award of compensation for injury to feelings. This aims to compensate the claimant for the hurt, anxiety or distress that they have suffered as a result of the discrimination.

The Court of Appeal set guidelines for the appropriate amount of compensation to be awarded for injury to feelings in the case of Vento v Chief Constable of West Yorkshire Police (No 2). These are known as the Vento guidelines. The Court identified three broad bands of compensation:

A lower band – for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence;
A middle band – for cases that do not merit an award in the upper band; and
An upper band – for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.

As we reported in 2017, the President of the Employment Tribunals (England and Wales) and the President of the Employment Tribunals (Scotland) issued joint Presidential guidance increasing the Vento bands, which will now be reviewed annually in March.

An addendum to Presidential Guidance has now been published increasing the Vento bands, adjusted for inflation. In respect of claims issued in England and Wales on or after 6 April 2019, the Vento bands will increase as follows:

Lower band: £900 – £8,800.
Middle band: £8,800 – £26,300.
Upper band: £26,300 – £44,000.

Exceptional cases are capable of exceeding £44,000.

In the meantime, quarterly statistics issued by the Ministry of Justice for the period October to December 2018 have shown an increase of 23% in Employment Tribunal claims compared with the same period in 2017. This could be as a result of the abolition of Tribunal fees.

Comment

Employers should remember that the injury to feelings award is only part of the compensation that an individual can claim in the event of a successful discrimination claim.

An award can also be made in respect of the loss that the individual suffered. Loss can include not only salary, but loss of any other benefit that can be quantified and expenses. Unlike in most unfair dismissal claims, there is no upper limit.

In the most serious cases, claimants can also claim an award of aggravated damages in addition to any amount that the Tribunal may award under the Vento guidelines. These are awarded where the employer has acted in a “high-handed, malicious, insulting or oppressive manner”, and where the behaviour has aggravated the claimant’s injury.

Claims for discrimination can be brought against not only the employer, but also any other individuals that the claimant believes is responsible for the discrimination, such as managers. If the claim is successful, compensation can be awarded against both.

An employer can be vicariously liable for discrimination committed by an employee in the course of employment. However, there is a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from carrying out the discriminatory act. Employers should therefore have in place a well publicised Equal Opportunities Policy which is consistently applied and enforced. Employers should also put in place Equality Awareness training for all employees.

We can provide equality awareness training at your workplace. We charge £900 plus VAT plus travel for a half day in-house training course for up to 20 managers.

08 April 2019

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