Wed 05 Jun 2019

Isolated incident of harassment does not limit injury to feelings award

Compensation for discrimination may include an award for injured feelings.The Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) set out clear guidelines for the amount of compensation to be given, separating awards in three distinct bands.  These bands are now updated on an annual basis, most recently in April.  

The lower band, currently set at between £900 and £8,800, is described as being "for less serious cases, such as where the act of discrimination is an isolated or one off occurrence".  The middle band, £8,800 to £26,300, is for "serious cases, which do not merit an award in the highest band" and the top band, currently £26,300 to £44,000, 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".

In Base Childrenswear Limited v Otshudi an employment tribunal had awarded the claimant £16,000 in respect of injury to feelings, an award that falls under the middle band, despite only upholding one incident of harassment - the claimant's dismissal - and finding the rest were out of time.  The ET had also made separate awards for aggravated damages and personal injury totalling another £8,000 and applied an uplift of 25% in respect of a breach of the ACAS Code.  The Respondent appealed claiming the awards were excessive.

The EAT found that even though the finding of unlawful discrimination related to an isolated event that did not mean the tribunal was required to assess the award for injury to feelings as falling within the lowest Vento band.  The question was what effect the discriminatory act had on the claimant and in this case the ET's findings on that were that it was a serious matter.  The ET has been careful to avoid double counting any matters that it had considered relevant to the findings of aggravated damages, personal injury and the ACAS uplift.  For these reasons the appeal in relation to the injury to feelings award failed. 

This case makes clear that a one-off occurrence of harassment does not automatically equate to a less serious one.  The severity of an incident can be more accurately assessed by looking at the impact it has on an individual rather  than simply looking at how often the harassment occurred.

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