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What is the right way to assess injury to feelings awards in discrimination cases?

Associate Solicitor, Helen Scott

The Employment Appeal Tribunal (“EAT”) in the case of Komeng v Creative Support has considered whether an award for injury to feelings should be based on the gravity of the Respondent’s actions or the actual effect that those actions have on the Claimant.

Background

The Claimant worked for the Respondent, Creative Support Limited, as a Waking Night Care Worker. The Claimant asked the Respondent to enrol him on a Level 3 NVQ course, but the Respondent failed to do so. The Claimant argued that he had not been enrolled because of his race, as other workers of different races had been enrolled.

Additionally, the Claimant was required to work every weekend and his request for time off and for other employees to share the burden of weekend working was refused. The Claimant made a claim to the Employment Tribunal for direct discrimination on the grounds of race.

The Law

When an individual brings a successful claim for discrimination, the Tribunal may make an award for injury to feelings to compensate individuals for how the discriminatory act has affected them personally. These awards will fall within one of three ‘Vento bands’, which are the lower (£900-£8,800), middle (£8,800- £26,300) and upper bands (£26,300- £44,000). Whether an award falls within a particular band will depend on the facts of the individual case and the bands are divided based upon the seriousness of the Respondent’s conduct, but the Tribunal should consider how the Claimant has been affected.

Decision

The Claimant succeeded in the Employment Tribunal, which made a finding of direct race discrimination. However, the Claimant appealed to the EAT as the injury to feelings award had been placed in the lower band, rather than the middle band and he had not been awarded interest.

The EAT held that the Employment Tribunal should have awarded interest to the Claimant, however it agreed with the Employment Tribunal’s decision to allocate the injury to feelings award in the lower Vento band. The EAT confirmed that the Tribunal had correctly focused on the impact of the Respondent’s actions on the Claimant, rather than the gravity of those actions.

Comment

Although injury to feelings awards are often difficult to estimate, this case serves as a guide for employers when considering potential liability in discrimination cases. Any injury to feelings award will be based on the effect that the discriminatory act has had on the Claimant and this test is a subjective one, rather than an objective one. Therefore, just because an employer’s actions are less serious, such as a one-off incident, it does not mean that an award for injury to feelings will automatically fall within the lower Vento band and vice versa.

It was in fact confirmed in the recent case of Base Childrenswear Ltd v Otshudi (covered here) that in a case of a one-off incident of discrimination, a Tribunal is not limited to making an injury to feelings award within the lowest Vento band. The question should always be, “what was the particular effect on this individual complainant?”

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