The cost of injury to feelings: increased compensation in discrimination claims

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 is separate from an award of compensation for financial loss and aims to compensate the Claimant for the hurt, anxiety or distress that they have suffered as a result of the discrimination.

In 2002, in the case of Vento v Chief Constable of West Yorkshire Police (No. 2), the Court of Appeal set guidelines for the amount of compensation to be awarded for injury to feelings. The Court identified three broad bands of compensation (“the Vento bands”):

A lower band set at £500 to £5,000 – for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence;
A middle band set at £5,000 to £15,000 – for cases that did not merit an award in the upper band; and
An upper band set at £15,000 to £25,000 – for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.

The Court clarified that only in the most exceptional case should an award for injury to feelings exceed the top of the upper band.

There are a number of factors for a Tribunal to consider when determining which band is appropriate in each particular case. These can include the Claimant’s personal characteristics, any medical condition from which the Claimant is suffering, factors such as panic attacks or stress, the nature of the Claimant’s job and the manner in which the employer dealt with any grievance brought by the Claimant. However, a Claimant does not necessarily need to show that they have suffered from any medical injury in order to be awarded compensation.

In 2009, the Vento bands were increased in line with inflation and a subsequent Court of Appeal decision in 2013 clarified that the bands should be increased by 10%.

On 5 September 2017, following consultation, the President of the Employment Tribunals (England and Wales) and the President of the Employment Tribunals (Scotland) issued joint Presidential Guidance that will apply to claims presented on or after 11 September 2017. For those claims, the Vento bands have been increased to:

A lower band of £800 to £8,400;
A middle band of £8,400 to £25,200; and
An upper band of £25,200 to £42,000, with the most exceptional cases capable of exceeding £42,000.

The new bands will be reviewed in March 2018 and then annually.

Comment

Employers must ensure that they are aware of their obligations under the Equality Act and the risk of successful discrimination claims if those obligations are breached with the potential for an award of compensation for injury to feelings. Getting it wrong could prove to be a costly mistake.

15 September 2017

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