In discrimination claims brought under the Equality Act 2010, successful claimants can recover compensation for any financial loss caused by the act or acts of discrimination complained of. In addition to awards of financial compensation, the employment tribunal can make injury to feelings awards. This means that claimants who have suffered no financial loss – for example, because they remain employed or have mitigated their loss by obtaining alternative employment – can still recover compensation for unlawful discrimination; the levels of award which can be made for injury to feelings can be significant. Injury to feelings awards cannot be made in relation to successful unfair dismissal claims relating to whistleblowing where the potential award of compensation available is unlimited.
Factors which can be taken into account by the employment tribunal in determining the level of an injury to feelings award will include: the nature of the claimant’s job; the degree of hurt, distress or upset caused to the claimant by the discrimination; the consequences for the claimant of the discrimination in terms, for example, of panic attacks, stress, loss of confidence and interference with personal relationships; the position of the discriminator; the seriousness of the treatment; how any grievance brought by the claimant was dealt with and the vulnerability of the claimant.
Case law guidance has made clear that injury to feelings awards should not be so high as to amount to a windfall, but also that they should not be so low as to diminish respect for the law – they are to be compensatory rather than punitive and the claimant does not have to establish that a medical injury has been suffered. The ‘value of the sum in everyday life’ should also be taken into account, either in terms of what it can buy, or its value in relation to the claimant’s earnings.
More specifically, in determining an injury to feelings award, the tribunal will have regard to what are called the ‘Vento bands’. These were established by the 2003 decision in Vento v Chief Constable of West Yorkshire Police (No 2) in which the Court of Appeal laid down guidelines for the assessment of, and set out three bands for, potential injury to feelings awards.
The ‘lower band’ is “appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”. The ‘middle band’ relates to “serious cases, which do not merit an award in the highest band”. The ‘top band’ covers “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race”. Only in ‘the most exceptional case’ should an award for injury to feelings exceed this top band.
Subsequent cases considered whether Vento bands should be increased to reflect subsequent inflation and whether they should also be adjusted upwards to reflect a Court of Appeal decision in 2013 which indicated that the level of general damages awards, not just in employment cases, should be increased by 10 per cent.
Following a Court of Appeal recommendation in 2014, joint presidential guidance on the Vento bands was issued in 2017 by the presidents of the Employment Tribunals in England & Wales and Scotland. This is now updated annually. A second addendum to that joint guidance has now been published and will apply to claims presented on or after 6 April 2019.
The revised Vento bands are a lower band of £900 to £8,800; a middle band of £8,800 to £26,300, and an upper band of £26,300 to £44,000, with the most exceptional cases being capable of exceeding £44,000.
The availability of potentially significant injury to feelings awards is an issue which employers need to consider when dealing with discrimination complaints and litigation, as well as when educating managers about the liabilities which can arise from unlawful discrimination.
Charles Wynn-Evans is a partner at Dechert LLP