Fri 31 Mar 2023

Calculating injury to feelings compensation awards in discrimination claims

In successful discrimination claims, injury to feelings awards combined with uncapped compensation means significant levels of award can be made.

 

What remedies are available in discrimination claims?

In discrimination claims an employment tribunal may:-

  • Order the Respondent to pay uncapped compensation - this includes an injury to feelings award as well as an award to recognise the financial losses suffered by the Claimant from the date of the discriminatory act to the date of the award being made by the tribunal and into the future. It can also include an award in respect of personal injury and interest. In England and Wales, it can include an award for aggravated damages;
  • Make a recommendation aimed at reducing the adverse impact of the discrimination on the Claimant; and/or
  • Make a declaration as to the rights of the Claimant and the Respondent in relation to the matters to which the proceedings relate.

What is the purpose of an injury to feelings award?

An injury to feelings award is intended to compensate a Claimant for the hurt and distress they have suffered as a consequence of their employer's discriminatory action against them.  An award of injury to feelings can be made whether or not the Claimant has suffered any financial loss.

How is the amount of compensation for injury to feelings assessed?

Injury to feelings awards in the employment tribunal are assessed in a broadly similar way to personal injury claims in the civil courts.  Tribunals should take account of the "value of the sum in everyday life" either in terms of what it can buy, or its value in relation to earnings. 

Tribunals will also take into account the effect the discriminatory behaviour has had on a Claimant, rather than the seriousness of the Respondent's conduct. 

The Claimant does not need to prove that they suffered any medical injury and the employment tribunal needs to assess whether the Claimant's feelings were injured and attribute a financial value to that injury. The tribunal will take various different factors into account when coming to their decision including:-

  • The degree of distress/upset caused
  • How the Respondent dealt with any grievance brought by the Claimant
  • The seriousness of what happened
  • Any medical condition that the Claimant is suffering from
  • Whether the Claimant has suffered from panic attacks, stress or lack of confidence
  • How senior the person found to be discriminating was
  • How long the Claimant worked for the Respondent before facing discriminatory behaviour

It is understandably difficult for tribunals to attribute a financial value to the Claimant's injury to feelings. To assist tribunals, the Court of Appeal previously set out guidance for quantifying awards for injury to feelings, known as the Vento bands.

What are the "Vento bands"?

In 2003, in Vento v Chief Constable of West Yorkshire Police No.2, the Court of Appeal set guidelines for the amount of compensation to be given for injured feelings.  This set three bands for the potential award:-

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

For claims brought on or after 6 April 2023 the current bands are:-

  • Lower band      £1,100 to £11,200
  • Middle band     £11,200 to £33,700
  • Upper band      £33,700 to £56,200

Awards of over £56,200 will only be made in very exceptional cases. The bands are reviewed annually in April.

How are the Vento bands applied in practice?

The Vento bands are a guide, they are not prescriptive.  That means in some cases a one-off incident will fall under the middle band, and in others it may be found that two or more incidents only merit an award in the lower band. 

Are there circumstances other than discrimination when injury to feelings awards can be made?

Yes.  Injury feelings awards can also be made in detriment cases, for example for detrimental treatment arising out of whistleblowing.

If you'd like to speak with us directly, please contact our Employment Team. 

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