DISCRIMINATION AND INJURY TO FEELINGS COMPENSATION

When a Claimant is successful in a claim for discrimination, the Employment Tribunal is entitled to award them extra compensation known as injury to feelings. This is to compensate the victim for the hurt feelings they have suffered as a result of the discrimination. There are three bands for injury to feelings, referred to as the ‘Vento’ guidelines. These currently stand as:-

Band 1 (lower band): £900 - £8,000

Band 2 (middle band): £8,800 - £26,300

Band 3 (higher band): £26,300 – £44,000

When awarding compensation for Injury to Feelings, the Tribunal does not usually follow any  set pattern when deciding where each claim falls, as they have complete discretion to consider each individual case. However, the case law has generally tended to show that where the discrimination was a ‘one off act’ of discrimination only, the lower band of the Vento guidelines have tended to be applied.  However, the EAT in Base Childrenswear Ltd v Otshudi have held that an Employment Tribunal is not limited to making an injury to feelings award within the lowest Vento band when the discriminatory act was a one-off.

The Claimant alleged seven acts of racial harassment, but the Tribunal only upheld one, which related to her dismissal. The Tribunal awarded the Claimant an award of compensation for injury to feelings, loss of earnings, interest, aggravated damages and personal injury. They also added a 25% uplift for the employer’s failure to comply with the ACAS Code of Practice.

Despite the Claimant only succeeding with one allegation, the Tribunal placed the injury to feelings award within the middle band of Vento, at £16,000. The Respondent appealed this decision at the Employment Appeal Tribunal (‘EAT’), claiming that the award was excessive. Additionally they claimed that the award fell in the wrong band as the act of discrimination was a one-off. The EAT held that the bands were not prescriptive and any award for injury to feelings would depend wholly upon the facts. The EAT noted that when making an award for injury to feelings, they Employment Tribunal must always question what the discriminatory act was and what effect this would have on the Claimant.

If you are looking for any advice with regards to discrimination in the workplace do not hesitate to contact a member of our Employment Team.