Guidance on “injury to feelings” awards

Where an Employment Tribunal finds that there has been discrimination it can award unlimited compensation for actual and future financial losses arising from the discriminatory treatment. In addition, it can also award damages for injury to feelings. Interestingly, it can make such an award even if the individual has not suffered any financial loss.

In a recent decision, Komeng v Creative Support Ltd, the Employment Appeal Tribunal (EAT) reiterated that when assessing the level of an award for injury to feelings, what needs to be considered is the impact of the discriminatory behaviour on the individual affected rather than the seriousness of the conduct of the employer or the individual responsible for the discrimination.

Before considering the details of the Komeng case, it is worth looking at the principles regarding an award for injury to feelings and the factors taken into account when assessing what level of award should be made.

The purpose of an injury to feelings award is to compensate the individual for the hurt and distress they have suffered rather than to punish the employer or person held liable for the discriminatory conduct. However, the sum awarded should not be so high that it amounts to a windfall nor should it be so low that it diminishes respect for the law.

In the well-known case of Vento v Chief Constable of West Yorkshire Police No. 2 (2003) the Court of Appeal set guidelines on the amount of compensation to be given for injury to feelings (the so-called Vento bands) as follows:

• The lower band which is appropriate for less serious cases such as where the act of discrimination is an isolated or one off occurrence.
• The middle band for serious cases which do not merit an award in the highest band.
• The top band for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment. In exceptional circumstances, the top band can be exceeded.

Subsequent case law established that a 10% uplift should be applied to any award and that the Vento bands should be increased annually in line with inflation.

For claims brought on or after 6 April 2019 the current bands are:

• Lower band £900 – £8,800
• Middle band £8,800 – £26,300
• Top band £26,300 – £44,000

In assessing which band should apply, an Employment Tribunal needs to consider the effect of the discriminatory conduct on the individual. One factor to take into account is the individual’s vulnerability, for instance, any medical condition they are suffering from or whether they have suffered stress or loss of confidence. Other factors include the effect of the discriminatory conduct on the individual’s career and the position of the person discriminating.

Although the frequency of the discrimination is a relevant factor, that is, whether it was a single incident or an ongoing course of conduct, this does not mean that a one-off incident will necessarily mean an award in the lower band or that a course of conduct will always mean an award in the middle or top band. This is because, as mentioned above, what an Employment Tribunal has to assess is the effect of the discriminatory conduct on the individual.

Background

In Komeng v Creative Support Ltd, the issue for the EAT was whether or not the Employment Tribunal was correct to award injury to feelings within the lower band rather than in the middle band for ongoing, unlawful race discrimination.

Mr Komeng, who is black, had worked as a “waking night care worker” since 2011, working with vulnerable adults with mental and physical health needs.  He was very keen to develop his professional skills and at various times, asked to be enrolled on a Level 3 NVQ course. CSL failed to take any steps to do this even though other individuals of a different race had been enrolled. Mr Komeng was also required to work every weekend. Although he had asked to have some weekends off and for other employees to share the burden of weekend working, his request had been refused.

The Employment Tribunal found that the failure to enrol Mr Komeng on the Level 3 NVQ constituted direct race discrimination as did the requirement for him to work every weekend. As Mr Komeng had remained in CSL’s employment, there were no financial losses and the issue for the Employment Tribunal was to assess an appropriate award for injury to feelings.

It noted that Mr Komeng continued to work for CSL even though it had consistently refused to help him undertake the Level 3 NVQ course or to have some weekends off. It accepted that it must have caused him significant upset and distress to work with colleagues with less continuous service who had the Level 3 NVQ qualification and who did not need to work every weekend.  As Mr Komeng persevered with his request for several years without receiving any support, the Employment Tribunal considered that the appropriate award for injury to feelings should be near the top of the lower band. It awarded £8,400 but did not add any interest, stating that Mr Komeng had made no claim for this.

Mr Komeng appealed to the EAT against the assessment of the injury to feelings award in the lower band.  He also appealed against the decision not to award interest.

EAT decision

In relation to the assessment of the injury to feelings award, the EAT was satisfied that the Employment Tribunal had correctly identified the relevant case law and principles, in particular, that the focus should be on the actual injury suffered by the individual and not on the gravity of the acts of the respondent. The Employment Tribunal had heard Mr Komeng’s direct evidence and was best placed to determine the appropriate level of award for injury to feelings. From the way the case had been presented, Mr Komeng had not been as adversely affected as others might have been but the  Employment Tribunal accepted that Mr Komeng would have been “very disappointed” at not being given the opportunity to obtain the Level 3 NVQ qualification. Indeed, as the EAT stated, Mr Komeng had “displayed a remarkable resilience in the face of the discriminatory treatment that he had suffered over a considerable period of time”.  The Employment Tribunal had acknowledged the seriousness of the matter by making an award at the top end of the lower Vento band. The EAT acknowledged that other Employment Tribunals might have reached a different decision but there was no error of law in how Mr Komeng’s Vento award had been assessed. Further, it was not the case that only one-off incidents fell within the lower band. Unless an Employment Tribunal had wrongly categorised the Vento band and made an award that was manifestly too high or too low, there was no scope for the EAT to intervene in the level of the injury to feelings award.

As for the issue of interest, the EAT held that it was not necessary for a party to the proceedings to make a claim for it. The Employment Tribunal has a discretion to consider awarding interest on any sums awarded irrespective of whether or not a party has applied for it. The EAT held that it was not correct for the Employment Tribunal to have recorded that no application for interest had been made  which implicitly supported its decision not to award interest. The EAT awarded interest in the sum of £3,517. Finally, as the Employment Tribunal had failed to apply the usual 10% uplift to the injury to feelings award, an additional £840 was awarded. This took Mr Komeng’s total award to £12,757.

Comment

The Komeng decision is useful not because of any new approach to the assessment of injury to feelings awards but because it reiterates some established principles. For instance, when assessing an award, the Employment Tribunal has to focus on the effect of the respondent’s conduct on the particular individual rather than the starting point being the seriousness of the respondent’s conduct. Another individual in Mr Komeng’s circumstances might have reacted very differently and the impact of the discriminatory treatment might have been much more severe which would have been reflected in the level of the award.

Further, the Vento bands are not so prescriptive that only one-off incidents must fall within the lower band as illustrated in Komeng. A serious one-off incident might be assessed as falling within the middle band whereas two or more relatively minor incidents might be found to justify an award in the lower band.

Komeng also illustrates that injury to feelings awards can be made even when there is no financial loss, either because, like Mr Komeng, the individual remains in their job or they have quickly found another job with the same salary and benefits.

Finally, employers are familiar with the concept of injury to feelings awards in the context of discrimination claims. However, it is important to be aware that such awards can also be made in detriment cases (although not where the detriment is dismissal), applying the same principles, for example, for detrimental treatment arising out of whistleblowing.

Speak to our expert Employment lawyers for more information regarding this.