Claims for discrimination are largely covered by the Equality Act 2010, the two most common forms of discrimination being direct and indirect. Direct discrimination is defined in the Act as one person treating another less favourably than he would others due to a protected characteristic (those characteristics being defined as age, disability, gender reassignment, marriage and civil partnership, religion or belief, sex, sexual orientation or pregnancy and maternity), whilst indirect discrimination is defined as a person applying a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of another. Generally, the primary outcome of discrimination (direct or indirect) is injury to feelings to the person who has been discriminated against.
The question which arises when a claim is made for injury to feelings as a result of discrimination is how damages can be quantified, given its non-tangible nature. How can I make a claim for my feelings being hurt and, if successful, what could I be awarded?
The relevant caselaw applying to damages for injury to feeling is Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871.
Summary
Ms Vento joined the West Yorkshire Police in 1995 after a life-long ambition to be a police officer. She made good progress within her first year, but a series of incidents occurred whereby other officers criticized her conduct, her personal life and her character in an “unwarranted, aggressive and demoralizing manner.” Ms Vento took some time off work due to the incidents, but upon returning later that year there were further incidents of the same nature.
Ms Vento made her original application in 1998. The Employment Tribunal in Leeds held that the Chief Constable was vicariously liable for discrimination on the basis of Ms Vento’s sex leading to the termination of her services as a probationary constable. The extended reasons for the decision were sent to parties in October 1999 and a remedies hearing was directed. The Chief Constable appealed against the liability ruling but this was rejected in June 2000. The remedies hearing was heard in 2001, where it was decided unanimously that Ms Vento would be awarded damages in the sum of £165,829 – £74,000 was awarded for non-pecuniary loss of earnings, £65,000 for injury to feelings and £9000 for psychiatric damage, as well as interest in the sum of £18,015.
The Chief Constable made an appeal as to the remedies, which was allowed. The Appeal Tribunal rescinded the award for loss of earnings and the overall award was reduced to £39,000 – £25,000 awarded for injury to feelings, £5,000 for aggravated damages and £9,000 for psychiatric injury. Ms Vento subsequently appealed to the Court of Appeal, which was heard in 2002.
The Court of Appeal ultimately restored the figure for financial loss, as well as amending the award for injury to feeling to £18,000 and maintaining the award for aggravated damages and psychiatric injury. In the end, Ms Vento received an award in the sum of £106,000.
Analysis
It’s clear that, prior to the Court of Appeal’s final decision in Vento, the topic of quantum for injury to feelings was a very contentious one! To avoid this back-and-forth in future discrimination cases, the Court of Appeal helpfully set out their guidance in the form of bands, in which claims could be categorised. The amounts which can be awarded have changed since 2002, but for claims issued on or after the 6th April 2024, the bands were as follows:
- The lower band: £1,200 to £11,700 for ‘less serious cases’;
- The middle band: £11,700 to £35,200 for ‘cases which do not merit an award in the upper band; and
- The upper band: between £35,200-£58,700 for ‘the most serious cases.’
It should be noted that amounts in excess of £58,700 can be awarded in the most exceptional cases.
So what is the difference between the bands? The definitions have been purposefully left rather broad so that they can be applied on a case-by-case basis, but the Court of Appeal in Vento did indicate to some extent what those bands may look like in practice. It was suggested, for example, that ‘one-off’ cases may be suitable for the lower band, whilst a repeated course of discrimination would fall within the middle or upper band. Perhaps the difference between the middle and upper band may then be determined by the severity of the injury to feelings; for example in Vento, as a result of the discrimination Ms Vento was diagnosed as clinically depressed and the discriminatory treatment of her was found to have contributed to her depression and affected her ability to form relationships.
The initial bands set out during these proceedings specified that the upper band would be between £15,000 and £25,000, meaning that her award was due to what was considered one of the most serious cases, and Mummery J in Vento gave an example of the upper band as being where there has been a ‘lengthy campaign of discriminatory harassment on the ground of sex or race’. The middle band, therefore, must strike a balance; in theory, it cannot be a one-off incident, but it also cannot be a lengthy campaign of discrimination.
To give an idea as to how the bands may be differentiated between, the following case law gives some hints:
- In Gilbank v Miles [2006] where it was found that Ms Miles and her company Quality Hairdressing Ltd (QH) had sexually discriminated against Ms Gilbank due to her pregnancy by failing to adjust her working practice, arranging breaks for meals or rests causing her to miss antenatal appointments as she “was not ill”, Ms Gilbank was awarded £25,000 for injury to feelings. There was an appeal by Ms Miles which was unsuccessful;
- In London Borough of Hackney (Appellant) v Adams (Respondent) [2003] where it was found that LBH had discriminated against Miss Adams by offering her a promotion to office manager then rescinding it on the grounds that she lacked flexibility, was inexperienced and had taken 10 days’ sickness absence during the previous year (which Miss Adams felt was due to her trade union activities), Miss Adams was awarded £5,000 as compensation for injury to feelings which was upheld at appeal.
- In Beckford v London Borough of Southwark [2016] where it was found that LBS had discriminated against Mr Beckford by dismissing him due to him “struggling to cope” in a new role without making reasonable adjustments by considering alternative employment due to his dyslexia, Mr Beckford was awarded £4,000, plus a further 10% increase “under Simmons v Castle” (to reflect the effect of inflation on Vento awards).
The broad definitions given by the Court of Appeal gives injured persons a real chance to make their case without being confined by rigid guidelines, a wholly positive approach given that discrimination by its nature can come in many forms.
Members of Becket Chambers can assist with matters pertaining to discrimination claims; please contact the Clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.
