Injury to Feelings Compensation in Discrimination Claims

In cases where a claimant is successful in proving that they have been discriminated against, in contravention of the Equality Act 2010, an Employment Tribunal Judge will award compensation.  The compensation can encompass various elements, including losses of earnings and compensation for injured feelings.  Given the recent increase regarding the amount of compensation to be awarded in respect of injured feelings (outlined below), Julie Sabba, an Associate in the MLP Law Employment Team, explains this type of compensation in more detail.
 
The purpose of the award for injury to feelings
Awards for injury to feelings are designed to compensate victims for the hurt caused by being treated in a way that contravenes the Equality Act 2010.  The level of hurt suffered is therefore directly linked to the amount of compensation that the employee will receive.  This means that, for example, a finding that an employee would have been fairly dismissed a few months later anyway (which could reduce the compensation awarded for loss of earnings) would not affect the hurt caused by the discrimination and, therefore, the amount awarded for injury to feelings.
 
Furthermore, the Tribunal Judge should be entirely focused on the effect the conduct has had on the employee, meaning that the level of an award for injury to feelings should not be affected by a desire to punish the discriminator nor should it be used as a means of deterring employers from particular courses of conduct.
 
The size of the award
Awards for injury to feelings are split into levels which are dependent on the seriousness of the case.  These bands are called Vento bands, after the case where the approach was first used.
 
The updated amounts, for claims presented on or after 6 April 2022, outlines that the Vento bands will be:
 
• £990 to £9,900 for the lower band—less serious cases
 
• £9,900 to £29,600 for the middle band
 
• £29,600 to £49,300 for the upper band—the most serious cases
 
• £49,300 and above for the most exceptional cases
 
Factors that can increase the award
Events happening after the original discriminatory acts may increase the size of the injury to feelings award, for example if they were a consequence of the initial discrimination, even if they did not involve any discriminatory conduct in themselves.  For instance, where, after being subjected to racially derogatory remarks, an individual was:
 
•put through a disciplinary process;
 
•moved to a different job location; and
 
•had to wait a long time for their grievance to be resolved;
 
the injury to feelings award for the original remarks was adjusted to take account of the subsequent actions that caused the employee distress, even though they did not amount to discriminatory conduct in themselves.
 
Primary consideration is the effect on the claimant
In assessing an injury to feelings award the primary consideration is the effect the conduct has on the individual claimant, not just whether it was a one-off act or continuing course of conduct. As such:
 
•a serious single act of discrimination or prohibited conduct, e.g. a dismissal, may in certain circumstances warrant an award for injury to feelings in the middle or upper Vento bands; and
 
•there may be cases involving a continuing course of conduct that are properly to be assessed as falling within the lower Vento band.
 
Moreover, the impact of conduct on a particular individual has to be considered from the claimant’s point of view.  So, if a claimant describes being incredibly upset by certain comments, which may have had less of an impact on others, it is not for the Judge to minimise the effect it has had on that individual.
 
Advice for employers
Given the sizeable sums which may be involved in successful claims of discrimination, it is essential to ensure that your business has robust equality policies, which are supported by relevant training to staff and managers.  This will help to defend any discrimination claim in the first instance and can help to reduce the size of any award.
 
If you would like advice from the Employment Team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK