Injury to feelings compensation will usually be included when an employee successfully claims discrimination. It is one of the few awards which is not dependent on financial loss. Unlike an award for unfair dismissal, which is based on actual and future loss of pay and benefits, compensation for injury to feelings is intended to compensate where the behaviour of the employer has caused distress, humiliation or anxiety.
Although there is no upper limit in the amount of compensation which can be awarded, large sums are unusual and they grab headlines for that very reason. Compensation is generally intended to be broadly similar to the range of awards in personal injury cases and not so high as to amount to a windfall. Since the 2002 case of Vento v Chief Constable of West Yorkshire Police, damages have been calculated with reference to three bands, according to the seriousness of the case. The bands are updated with effect from 6 April 2019, and for claims presented on or after that date, the Vento bands are as follows:
• £900 – £8,800 – appropriate for less serious cases such as a one-off incident of discrimination
• £8,800 – £26,300 – for serious cases of discrimination
• £26,300 – £44,000 for particularly serious cases, such as a lengthy campaign of discriminatory harassment
The amount awarded may exceed the upper band only in exceptional cases.
Factors which Tribunals will take into account when quantifying injury to feelings awards include:
• the vulnerability of the claimant
• the degree of distress caused
• the seniority of the person found to be perpetrating the discrimination, and
• the seriousness of the treatment.
It is also worth being aware that Employment Tribunals have taken a particular interest in the manner in which the employer dealt with any grievance brought by the claimant. An ill-managed process may compound the original issue, and also lead to a higher compensatory award being considered.
When it comes to assessing the size of the award, there is no exact science and the claimant does not usually have to provide evidence of a medical injury as such. The exercise is more of an analysis of the hurt feelings caused by the discriminatory treatment, with the ET translating this into a cash equivalent. ETs do have considerable discretion in assessing the size of the award and, although there is no upper limit on the size of the award, Ministry of Justice figures for average awards do provide some much-needed context to the exceptional nature of very big sums. Average awards for discrimination cases during the year ending March 2018:
Religion or belief £5,074
Sexual orientation £12,550
Age discrimination £6,796
The nature of every discrimination case is, of course, very much dependent on its own facts, and the value of solid HR processes for tackling allegations of discrimination, as well as taking early steps to address emerging problems cannot be overstated.