The Employment Appeal Tribunal (EAT) has confirmed that the effect of unlawful discrimination on an employee is the main consideration when calculating an injury to feelings award, not the gravity of the employer's actions.

Komeng v Creative Support Limited

Mr Komeng, a Walking Night Care Worker for Creative Support Limited (CSL), asked CSL if he could be enrolled on an NVQ course to develop his career. Mr Komeng also requested flexibility with weekend shifts. Both requests were refused. Other employees of a different race had been enrolled on such courses and were allowed more flexibility with weekend shifts.

Mr Komeng successfully brought a claim for direct race discrimination after the Employment Tribunal (ET) found that CSL had treated Mr Komeng less favourably than fellow colleagues of a different race.

Mr Komeng's Award for Injury to Feelings

The ET awarded Mr Komeng £8,400 for injury to feelings, on the basis that he did not provide evidence that he had been adversely affected by the discrimination and that he had displayed remarkable resilience.

Mr Komeng appealed, arguing that he should have received a higher award given the seriousness of the employer's actions.

The Employment Appeal Tribunal (EAT) confirmed that it is the effect on the particular claimant that is to be assessed, rather than the gravity of the employer's acts of discrimination. The EAT also clarified that awards in the lower band (see below) are not reserved for one-off incidents of discrimination.

Calculating Injury to Feelings Awards

When making an award for injury to feelings an employment tribunal will have regard to the following bands:

  • lower band (£900-£8,800) for less serious cases, such as an isolated or one-off occurrence
  • middle band (£8,800-£26,300) for serious cases of discrimination
  • top band (£26,300-£44,000) for particularly serious cases such as a lengthy campaign of discriminatory harassment

The amounts are reviewed annually.

The ET found that Mr Komeng was resilient and therefore made an award in the lower band. However, had the same treatment caused him more distress, it is likely he would have received a higher award.

Whilst one-off acts of discrimination will most commonly give rise to an award in the lower band, this is not a rule and if the effect on the claimant is severe enough, then a higher award can be granted.

In turn, just because there has been a course of conduct as there was in this case, does not automatically mean that an award in the middle or upper band will be made.

What Does This Mean for Employers?

This is helpful guidance and a reminder of how employment tribunals calculate awards for injury to feelings. Whilst there are cases, such as this one, where the seriousness of the employer's actions are not matched by the effect on the claimant, in most cases it is likely that one will follow the other.

You should remember that all awards will be based on a detailed assessment of the particular facts of the case, so it can be hard to predict the level of awards in discrimination claims.