For successful discrimination claims brought to the Employment Tribunal, the Tribunal may decide to order an award for compensation to the Claimant. This award will be based on the loss the Claimant has suffered and can include an injury to feelings award.
An injury to feelings award is intended to be compensatory towards the Claimant however in respect of non-financial loss that they have suffered (for example, the impact that the unfavourable treatment has had upon a Claimant’s mental health). A Claimant can therefore recover for injury to feelings even when they have suffered no financial loss at all.
The clear difficulty here is how non-financial damages are evaluated in order for the Tribunal to allocate a sufficient financial value upon this. Neither the Equality Act 2010 nor the previous discrimination legislation provides guidance as to how a tribunal should do this. It has therefore been left to the tribunals and courts to provide guidance via case law.
The leading case that Tribunals use when considering the appropriate award for injury to feelings, if applicable, is the case of Vento v Chief Constable of West Yorkshire Police (No 2). This case formed what is known as the ‘Vento Bands’ which provided a clear three stage ‘band’ system under which claims could be assessed, as follows:
- The lower band: “appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.”
- The middle band: “serious cases, which do not merit an award in the highest band.”
- The top band: “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 the top of this band.
Last week, the Presidents of the Employment Tribunals in England, Wales and Scotland published a response to a consultation on the Vento Band values. It has been confirmed that for claims presented on or after 11 September 2017, the Vento Band values have increased, and the new Band values are as follows:
- Lower Band: £800 to £8,400 (previously up to £6,600);
- Middle Band: £8,400 to £25,200 (previously up to £19,800); and
- Upper Band: £25,200 to £42,000 (previously up to £33,000)
The increase to compensation levels makes it even more important for employers to avoid discrimination claims arising as far as possible. A good way to limit the potential for discrimination claims arising is to ensure staff are given training (at the commencement of and throughout their employment) and employers should ensure that they have a comprehensive equality policy in place.
This blog post was written by Kate Fellows. For further information, please contact:
Kate Fellows, solicitor, Employment
T: 0121 212 7849