Injury to feelings awards: how are they assessed?

Injury to feelings

Injury to feelings is a distinct award of compensation that can be made in discrimination claims. The purpose of the 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 2003, in the well-known case of Vento v Chief Constable of West Yorkshire Police, the Court of Appeal set guidelines when assessing compensation for injury to feelings (the Vento bands) and the current bands are:

• Lower band £1,200 – £11,700 which is appropriate for less serious cases such as where the act of discrimination is an isolated or one-off occurrence;
• Middle band £11,700 – £35,200 for serious cases which do not merit an award in the highest band; and
• Higher band £35,200 – £58,700 for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment but this can be exceeded in exceptional circumstances.

The Vento bands are increased annually and we are still waiting to find out what the rates will be from April 2025.

In assessing which band should apply, an Employment Tribunal needs to consider the effect of the discriminatory conduct on the individual. One factor 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 result in 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.

Employment Tribunal assessment “totally flawed”

In the first case, Shakil v Samsons Ltd, Ms Shakil commenced employment on 5 October 2020 as an accountant/bookkeeper. On 30 March 2021, she phoned a director of the company, Mr Saleem, and said she was feeling unwell with morning sickness. The Employment Tribunal subsequently found that the company was aware of Ms Shakil’s pregnancy from that date. The next day, her work was reduced to two days a week. In September 2021, Ms Shakil was informed that she was provisionally selected for redundancy and she was dismissed at the end of that month. Baseless concerns were also raised about Ms Shakil’s performance. Ms Shakil commenced maternity leave on 1 October 2021.

Employment Tribunal

She was successful in her claims at the Employment Tribunal. It held that reducing the work to two days a week was because of Ms Shakil’s pregnancy-related illness and the reason for the dismissal was the pregnancy and not redundancy. It awarded compensation for loss of earnings, notice pay and holiday pay and £5,000 for injury to feelings.

Employment Appeal Tribunal

Ms Shakil appealed to the EAT arguing that the Employment Tribunal had not taken the correct approach when assessing injury to feelings and applying the Vento guidelines.

The EAT agreed. It held that an award of £5,000, in the middle of the lower band, was arguably outside the reasonable range of awards that an Employment Tribunal might make. The application of the Vento guidelines generally requires that the Employment Tribunal:

• Identifies the discriminatory treatment for which an award of injury to feelings is to be made;
• Hears evidence from the claimant about any injury to feelings caused by the discriminatory treatment;
• Makes findings of fact about the injury to feelings suffered;
• Identifies the relevant guidelines applicable to the award;
• States the band the injury to feelings award falls within; and
• Explains why the injury to feelings falls within that band, where the award falls within that band and why the specific award was made.

The Employment Tribunal in Ms Shakil’s case failed to do most of these things. Her hours of work were reduced without notice, she was subject to a sham redundancy process and the concerns about her performance were not genuine. There was also no explanation regarding why the Employment Tribunal had placed the injury to feelings award in the middle of the lower band. The EAT said that it was hard to see how the injury to feelings award would not come within the middle Vento band taking into account the period over which the treatment occurred and the effect on Ms Shakil. It went on the say that the analysis of the Employment Tribunal was “wholly inadequate” and allowed the appeal. It remitted the case to a different Employment Tribunal to re-assess the award because the original decision was “totally flawed”.

“Manifestly excessive” compensation for injury to feelings

In the second case, Eddie Stobbart Ltd v Graham, Ms Graham worked for around nine  months at the company and was one of nine planners at a depot. She commenced employment in July 2021 and on 21 October 2021, she informed her line manager she was pregnant.

On 29 March 2022, redundancy consultation started because the company proposed to make the nine planners redundant and create four new transport shift managers at the same depot. Ms Graham argued that, in accordance with pregnancy legislation, she had the right to be offered suitable alternative employment in preference to other redundant employees but the company’s view was that the transport shift manager role was not suitable. Consequently, Ms Graham was required to attend for a competitive interview. On 12 April 2022, she commenced her maternity leave and the next day was interviewed for the transport shift manager role but was unsuccessful.

She raised a grievance by email but it was not discussed and she then re-sent the grievance again by email. However, it transpired that the company’s IT firewall blocked the emails as a security risk and they were not seen by the manager who dealt with the initial redundancy consultation or by the HR team.

Employment Tribunal

Following her dismissal for redundancy, Ms Graham brought a claim for automatic unfair dismissal arguing that the transport shift manager role was suitable alternative employment which she should have been offered. She also claimed that she had been subject to detrimental treatment on six occasions (two of which related to the grievance) and that she had also suffered pregnancy/maternity discrimination and victimisation. The claims were dismissed by the Employment Tribunal except for the two relating to the company’s inadequate response to the grievance.

The Employment Tribunal awarded £10,000 for injury to feelings on the basis that Ms Graham had been upset both by “the way in which she had been dealt with by the respondent in relation to her redundancy” and “the failure of the respondent to deal with her grievance”.

Employment Appeal Tribunal

The company appealed arguing that the award of £10,000 was so excessive as to be perverse, that is, one no reasonable Employment Tribunal would have made. It asserted that failure to deal with the grievance was a one-off, isolated incident and the award was disproportionate to the “degree of upset”. It also appealed on the basis that the Employment Tribunal’s award of £10,000 was insufficiently reasoned.

The EAT allowed the appeal. There was limited evidence of the extent of Ms Graham’s injury, all she had said in evidence was that she had been shocked and upset. Further, the injury did not last beyond the immediate experience of the detriment and there was no finding of any impact on her personal life or her quality of life. In the EAT’s view the award should have been in the lower band and it was perverse for the Employment Tribunal to place it in the middle band. The EAT therefore reduced the award for injury to feeling to £2,000 plus interest.

The EAT pointed out that the parties can greatly assist an Employment Tribunal by providing evidence in support of any claim of injury to feelings. It held that the following factors may be important to consider:

• The Claimant’s description of their injury;
• The duration of the consequences of any injury;
• The effect on past, current and future work; and
• The effect on personal life or quality of life.

The EAT also gave the following useful guidance on the relationship between the manner of the discrimination and the likely level of injury – helpful where the Claimant’s evidence in support of injury is lacking:

• That overt discrimination is more likely to cause distress and humiliation;
• That discrimination played out in front of colleagues or for others to see may well cause greater harm;
• That disciplinary threats may provide a basis for inferring more serious injury to feelings; and
• That exclusion which causes isolation can also indicate a more serious injury.