Where more than one type of discrimination is found, injury to feelings must be assessed separately under each head but tribunals should beware of ‘double counting’.
In the recent case of Al Jamard v Clwyd Leisure the employee was successful in claims of both race and disability discrimination. On his claim for injury to feelings the employment tribunal awarded him £13,000 (ie in the 'middle bracket' of £5,000-£15,000 established in the leading case of Vento) intended to cover injury to feelings under both heads.
He appealed saying that this figure was too low because it was a composite figure.
The EAT has now remitted this issue to be reconsidered by the tribunal and has given useful guidance on what considerations a tribunal must have in a case where different 'strands’ of unlawful discrimination have been found and the tribunal has to decide whether to make an award for injury to feelings and, if so, the amount to be awarded.
Where different forms of discrimination arise from the same acts, they cannot be split but can be dealt with a on a composite basis. However, where different forms of discrimination arise from different acts, the tribunal must assess injury to feelings separately. For example the offence caused by a deliberate act of race discrimination may cause greater injury to feelings than a thoughtless failure to make adjustments under the Disability Discrimination Act. The tribunal must then look at the total figure awarded for injury to feelings to ensure that it is proportionate and that it does not involve ‘double counting’.
The EAT said they thought it was a wholly unreal and an impossible exercise to consider each and every incident separately when making this assessment and the amount awarded should not be directly related to the number of different grounds for each act complained of.
Point to note –
- In every discrimination claim, the claimant may ask for compensation for injury to feelings. As this case shows, assessment is rather an arbitrary exercise as this is one area where the amount awarded is assessed on an entirely subjective basis ie the offence causes to the claimant.
- The amounts awarded can be substantial (the top band established in the case of Vento starts at £30,000) and (again as shown in this case) multiple strands of discrimination may lead to multiple awards. Any such claim requires careful and specialist attention.