Employment Law Solutions. Expert advice... more personal

Injury to feelings awards

The Employment Appeal Tribunal in the case of Base Childrenswear Ltd v Osthudi considered whether a one-off act of discrimination can lead to an injury to feelings award in the middle ‘Vento’ band.

Background

The Claimant worked for Base Childrenswear Ltd (“the Company”). After three months of employment she was called to a meeting and summarily dismissed for reason of redundancy. The Claimant believed she had been dismissed because of her race and submitted a grievance and appeal against her dismissal. However, the Company did not respond.

The Claimant submitted a claim for race discrimination.

Compensation in discrimination claims

If an Employment Tribunal finds an employee has been subjected to discrimination it can award compensation in the form of:

  • Financial losses arising from the discriminatory act;
  • Injury to feelings; and
  • Personal injury

Injury to feelings awards are assessed by reference to the ‘Vento’ bands which are:

Lower band – appropriate for less serious cases, usually an isolated act or one-off occurrence

Middle band – for more serious cases which do not merit an award in the highest band

Top band – the most serious cases usually where there has been a lengthy campaign of discriminatory conduct.

Decision

The Employment Tribunal upheld the Claimant’s claim, finding that the dismissal was an act of racial harassment and she was awarded £16,000 for injury to feelings (amongst other awards).

The Company appealed on the basis that the awards were manifestly excessive and, in particular, that the injury to feelings award should have been in the lower Vento band.

The Employment Appeal Tribunal (“EAT”) held that whether the discrimination was a one-off act or a course of conduct was a relevant factor for the tribunal to take into account when considering compensation but was not determinative. Injury to feelings awards are fact sensitive and the tribunal must always consider the effect that the discrimination had on the individual claimant.

Comment

It is difficult to assess likely compensation in discrimination cases and this case demonstrates that even a one-off act can result in substantial compensation if the tribunal finds that the discrimination significantly affected the employee.

As an aside point, the Tribunal in this case also awarded a 25% uplift to compensation for the Company’s failure to follow the ACAS Code of Practice by not responding to the Claimant’s grievance, even though this was submitted after termination of her employment. There has been no previous EAT authority on failing to follow the ACAS Code by not responding to grievances raised by former employees but, following this decision, it may be advisable for employers to deal with post termination grievances, especially if there is a risk of an employment tribunal claim.

This entry was posted in Law. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *