Following a short period of consultation, the Presidents of the Tribunals in England and Scotland have issued significantly increased rates for compensation for injury to feelings in cases of discrimination.

Background

Claimants who are successful in their claims for unlawful discrimination are entitled to compensation in the form of an injury to feelings award. Since the case of Vento v Chief Constable of West Yorkshire Police in 2002 such compensation has been placed into three distinct 'bands' based upon the severity, length and repetition of the acts complained of. These are;

  • Lower - appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence;
  • Middle - serious cases, which do not merit an award in the highest band; and
  • Upper - the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.

The purpose of compensation

Compensation is intended to put the injured party in the position they would have been had the unlawful act (in this case discrimination) not taken place. In discrimination cases the injury to feelings award is intended to compensate for the distress caused by the act(s) of discrimination. Additional damages for loss of earnings, pension, bonus etc. are also available but are outside the scope of this note.

There are similarities between an injury to feelings award and damages that are awarded by the civil courts in personal injury cases. Damages in the civil courts are strictly governed and the introduction of the compensation bands in the Vento judgment were intended to align the levels of damages being awarded in the two jurisdictions. Consequently, changes to the way in which damages are calculated in one jurisdiction, must be reflected in the other.

Previous developments

The Vento bands were modified by the case of Da'Bell v NSPCC with the EAT increasing the compensation limits in line with inflation. The EAT subsequently held in AA Solicitors Ltd (t/a AA Solicitors) and another v Majid (2015) that individual employment tribunals were entitled to increase the Vento limits in line with inflation, provided that there was evidence to justify the increase.

In 2012 in the civil case of Simmons v Castle the court increased the amount of compensation awarded for personal injuries. Consequently, in the 2017 decision of Pereira de Souza v Vinci Construction UK Ltd the Court of Appeal held that the same increases should apply to the employment tribunals. In its judgment, the Court of Appeal recommended that the President of the Tribunals review the position and issue appropriate guidance.

The Presidential guidance

After a short period of consultation the Presidents of the England and Scotland Employment Tribunals issued guidance which confirmed a significant increase to the Vento bands to bring them in line with inflation and a further uplift to align the compensation with the civil courts following Simmons v Castle. The guidance also prescribes a formula for employment tribunals to apply in subsequent years so that the bands can be accurately and consistently increased with inflation. With effect from 11 September 2017 the Vento bands are:

  • Lower: £800 to £8,400
  • Middle: £8,400 to £25,200
  • Higher: £25,200 to £42,000

The position in Scotland

The Simmons v Castle judgment does not always apply to compensation in Scotland and consequently the bands could be reduced within the Scottish tribunals. While the Presidential Guidance is the same for both jurisdictions, the bands could be reduced in Scotland by around 10%. In such cases the employment judge must give a clear rational for the reduction.