Compensation in discrimination cases can cover both financial and non-financial loss.
Non-financial loss can include injury to feelings and individuals can recover compensation for this even when they have suffered no financial loss.
In Vento v Chief Constable of West Yorkshire Police 2003, the Court of Appeal set out three bands of awards that could be given to a successful claimant for injury to feelings:
- Lower Band – this would be appropriate for less serious cases, for instance where the act of discrimination is an isolated or one off occurrence. Awards that could be made in this band were between £500 to £5,000.
- Middle Band – this would be appropriate for serious cases, but not so serious enough as to warrant an award in the highest band. Awards that could be made in this band were between £5,000 to £15,000.
- Top Band – this would be appropriate for the most serious cases, for instance where there has been prolonged discriminatory harassment on the ground of sex or race. Awards that could be made in this band were between £15,000 - £25,000.
Following Vento v Chief Constable of West Yorkshire Police 2003, there have been a number of cases which have modified how tribunals should approach dealing with the aforementioned bands. In Da’Bell v NSPCC 2009, the Employment Appeal Tribunal revisited the bands and took into consideration inflation. In De Souza v Vinci Construction (UK) Ltd 2017, the Court of Appeal ruled that a 10% uplift should also apply to Employment Tribunal awards of compensation for injury to feelings (this followed a decision made in Simmons v Castle 2012 which concerned a branch of law known as Tort).
What has now happened to increase the bands on injury to feelings?
The President of the Employment Tribunal for England and Wales, along with his Scottish counterpart, has issued joint Guidance which increases rates for compensation in discrimination cases where there has been injury to feelings.
What does the Guidance say?
Awards that can be made by the tribunals to a successful claimant in such cases are now as follows:
- Lower Band - £800 to £8,400
- Middle Band - £8,400 to £25,200
- Upper Band - £25,200 to £42,000
The above bands first take into consideration inflation (as in Da’Bell v NSPCC 2009), then apply a 10% uplift (as in De Souza v Vinci Construction (UK) Ltd 2017). It is worth noting however that bands and awards for injury to feelings can be adjusted by tribunals where there is cogent evidence of a rate change in the value of money over time.
Watch out! With no tribunal fees and an increase in compensation it is likely that we will see an increase in claims. Employers beware and take advice if discrimination may be a potential issue.