The Presidents of the Employment Tribunals in England & Wales and Scotland have issued an addendum to their guidance on Employment Tribunal awards for injury to feelings in discrimination claims.

For claims presented on or after 6 April 2018, the revised Vento bands will be:

  • £900 to £8,600 for the lower band, which applies to less serious discrimination cases
  • £8,600 to £25,700 for the middle band
  • £25,700 to £42,900 for the upper band, which applies to the most serious discrimination cases
  • £42,900 and above for the most exceptional cases

Awards for injury to feelings are made to claimants for the hurt caused when they have been treated in a discriminatory way which is unlawful under the Equality Act 2010.

Although such an award is designed to be compensatory and not punitive, a finding that an employee would have been dismissed lawfully (and in a non-discriminatory way) shortly after a discriminatory act will not affect the amount awarded for injury to feelings.

Also noteworthy is that events occurring after the discriminatory conduct can serve to aggravate the injury and so increase the size of the award if those events were a consequence of the prohibited conduct. One common situation where this can arise is where an employee raises a grievance after being subject to discrimination and the employer takes an unreasonably long period of time to resolve the grievance one way or another.

Injury to feelings awards are separate from awards for general financial loss, which are intended to put a claimant back into the financial position they would have been in if the discriminatory conduct had not happened (but subject always to a general duty to take reasonable steps to mitigate the loss).

Where the discriminatory conduct causes termination of employment, the proper assessment of financial loss is determined by asking when the claimant might expect to obtain another job on a salary equivalent to their original job. It is not limited by the period during which they would have remained employed by the original employer if the prohibited conduct had not occurred.

However, unlike claims for unfair dismissal, awards for general financial loss for discrimination are not subject to a statutory maximum or cap.

For this reason, discrimination awards can be very costly indeed: exceptionally, a tribunal will be entitled to take the view on the evidence that there is no real prospect of the employee subjected to the unlawful conduct ever obtaining an equivalent job. In such a case the tribunal necessarily has to assess the loss on the basis that it will continue for the course of the claimant’s working life.