An employee alleging discrimination on the part of their employer (for example on grounds of disability) may ask the Employment Tribunal to make an award for compensation for “injury to feelings”. This is an award of damages aimed as a remedy for the hurt, humiliation and degradation suffered by the employee and will be considered separately from any claim for financial loss such as loss of earnings.
Such a remedy has long been a fundamental element of discrimination claims and is currently enshrined in section 119 of the Equality Act 2010. However there has never been any legislative guidance on how awards for injury to feelings should be determined which unsurprisingly meant that in the past there was often wide variance between awards made by different Tribunals.
The Vento Decision
Some attempt was made in 2002 to provide clarity for parties and Tribunals alike. In Vento v The Chief Constable of West Yorkshire Police  EWCA Civ 1871 the Court of Appeal identified three “bands” of potential awards for discrimination claims:
- The lower band applies to “less serious cases, such as where the act of discrimination is an isolated or one off occurrence”.
- The middle band “should be used for serious cases, which do not merit an award in the highest band”.
- The top band is appropriate for “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment…”.
The court also went on to determine that it would only be in “the most exceptional cases” that an award would exceed this top band.
Vento After 2002
In Vento the Court of Appeal gave a value to each band, ranging from £500 for the bottom of the lower band to £25,000 for the most serious cases in the top band. Those values were of course linked to the cost of living in 2002 and despite the court’s comment that Tribunals should take account of the “value of the sum in everyday life” the bands had only been formally revisited once by 2017 (in the 2009 Employment Appeal Tribunal case of Da’Bell v NSPCC). This left the value of awards potentially out of line with inflation and general increases in the costs of living, and effectively left it up to individual Employment Tribunals in individual claims to adjust awards as they saw fit.
To add to the uncertainty, from April 2013 there was the additional question of whether a Simmons v Castle 10% “uplift” should apply to an award for injury to feelings. This uplift came about after changes to the costs’ rules governing personal injury claims in the civil courts and the Court of Appeal’s declaration in Simmons that awards for pain, suffering and loss of amenity (commonly known as general damages) should be 10% higher than previously. It is easy to see how Tribunals making awards for “injury to feelings” from April 2013 onwards might take the view that the Simmons v Castle uplift should also apply to discrimination claims (and indeed this approach was approved by the Court of Appeal in the case of De Souza v Vinci Construction (UK) Ltd  EWCA Civ 879). In De Souza the court recognised the past uncertainty in discrimination claims and invited the President of Employment Tribunals to issue new guidance for injury to feelings awards to take into account both inflation and Simmons v Castle.
The result was Presidential Guidance issued in September 2017 which uprated the Vento bands. The Guidance confirmed that awards for injury to feelings are to be assessed as follows:
- For claims presented on or after 11th September 2017 the Vento bands are £800 to £8,400 for awards in the lower band; £8,400 to £25,200 for awards in the middle band; and £25,200 to £42,000 for awards in the upper band.
- For claims presented before 11th September 2017 the situation is a little more complex. In these cases the Tribunal should determine the appropriate award by calculating the Vento bands with reference to the RPI All Items Index. This is achieved by dividing the original Vento band by 178.5 (the RPI value applicable when Vento was decided) and then multiplying that figure by the RPI for the month and year in which the claim was presented. As an example the bottom of the lower Vento band for a claim presented in August 2016 would be £740.60 (£500 x 178.5 / 264.40), 264.40 being the RPI value for August 2016. For those claims presented after 1 April 2013 the 10% Simmons v Castle uplift will then need to be added.
Whilst it is important to remember that Presidential Guidance is not binding, the Tribunal must have regard to it and it would be highly unusual for such Guidance to be disregarded.
At first blush the update may seem to only favour the employee in discrimination cases but employers also benefit from having clarity at the outset of proceedings as to the likely award should they lose at Tribunal.