Thu 26 Sep 2019

Effect of discrimination more important than cause when assessing compensation

Victim's resilience to discrimination can be a factor in lowering the level of compensation they receive.

Quantifying injury to feelings awards is not an exact science.  Discrimination legislation has never provided guidance as to how a tribunal should evaluate such an award, with it being left to the courts and tribunals to provide guidance.  The "Vento bands" which arose from the case of Vento v Chief Constable of West Yorkshire Police (No 2) set guidance as to the amount of compensation to be given for injured feelings. Subsequently in Cadogan Hotel Partners Limited v Ozog the EAT held that when assessing compensation the focus should be on the actual injury suffered by the claimant and not the gravity of the acts of the respondent. 

In Komeng v Creative Support Limited the claimant had worked as a Waking Night Care Worker since 2011. He remained in employment at the time of his tribunal hearing and had demonstrated enthusiasm to develop professionally including requesting to be enrolled on an NVQ course.  However, the respondent took no action to progress that request in contrast to the way named comparators of a different race had been treated.  He had also been required to work every weekend unlike his comparators. 

The tribunal acknowledged the actions of the respondent must have caused the claimant "significant upset and distress" and that the acts of discrimination continued over a number of years.  However, they decided to make an injury to feelings award in the lowest Vento band.  The lower band is described as being "appropriate for less serious cases, for example where the act of discrimination is an isolated or a "one-off occurrence".  The claimant appealed both the placing of the injury to feelings award in the lower rather than the middle Vento band and the tribunal's failure to award interest on the compensation. 

Although, the EAT did uphold the appeal insofar due to its relation to the failure to award interest, it was held that there had been no error of law in determining that the appropriate level of award was in the lower Vento band. In reaching this conclusion it highlighted the importance of assessing compensation based on the impact of the discrimination on the individual concerned saying "the impact of discrimination is an individual experience and the unlawful discriminatory behaviour may affect different individuals differently". 

The EAT found that in this case the evidence of the claimant before the tribunal did not suggest he had been as adversely affected as many others might have been, and that he had "displayed a remarkable resilience in face of the discriminatory treatment that he had suffered over a considerable period of time".  It also confirmed that it is not the case that only one-off incidents fall within the lower Vento band. 

However, although on this occasion the resilience of the employee worked to the benefit of the discriminating employer when it came to assessing compensation, this method of calculation works both ways.  An employee with a more fragile disposition could receive more compensation for an apparently less serious act of discrimination - earlier this year we covered the case of Base Childrenswear Limited v Otshudi where a one off act of discrimination resulted in an award in the middle Vento band.  Also, it is the case that the fact an employee may not be aware of the discriminatory motive of his employer's actions does not prevent the making of an injury to feelings award.

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