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People Newsletter (Spring/Summer 2012)
- Unfair dismissal qualifying period
- On your marks, get set, go! Get ready for the Olympics
- The price of injured feelings
- Franchising TUPE obligations?
- Seldon - the pensions issues
- Making employee ownership mainstream
Discrimination claims can be extremely costly for employers, involving potentially unlimited damages. A key element of nearly all discrimination awards is a sum representing 'injury to feelings'. Estimating damages for injury to feelings can be the 'great unknown' when calculating the potential value of a claim. The relevant legislation is silent on this point and, until 2002, there was little guidance available.
However, the case of Vento v Chief Constable of West Yorkshire Police then clarified the issue, suggesting three basic bands of potential awards:
- Top band: £15,000 - £25,000 for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment.
- Middle band: £5,000 - £15,000 for serious cases which do not merit an award within the highest band.
- Lowest band: £500 - £5,000 for less serious cases, such as one-off or isolated events.
Subsequently, in the 2010 case of Da'Bell v NSPCC, the Employment Appeal Tribunal (EAT) revisited the Vento guidelines and increased the levels of award to reflect inflation:
- Top band: £18,000 - £30,000
- Middle band: £6,000 – 18,000
- Lowest band: £500 - £6,000
Tribunals now exercise discretion within these guidelines, based on the facts of the case and the period over which any discrimination occurred. Case law suggests the focus should be on achieving a balance: so that awards are not so high that they amount to a windfall, nor so low as to diminish respect for the law.
According to Equal Opportunities Review, the average injury to feelings award in 2010 was £5,908. Over half of awards fell within the lowest band of the Vento guidelines and only 3% in the top band. Nonetheless, the average awards by different strands of discrimination were as follows: £7,810 for race, £6,147 for disability and £5,719 for sex discrimination.
Awards are very case-specific. In Davies v Remploy Ltd, the Claimant was awarded £6,000 injury to feelings following his discovery that he was mockingly referred to as 'Ironside' for being a wheelchair user, despite the fact that he was never called this to his face.
In Sahni v Poundland Ltd, the Claimant, who was blind, received £14,000 for injury to feelings after not being provided with recommended support systems. The Tribunal took into account that he had suffered depression and that the process had taken four years, but also that his employer had not been unpleasant towards him.
In Browne v Central Manchester University NHS Foundation Trust, concerns about the Claimant's performance were not dealt with according to proper NHS procedure, despite frequent grievances being raised, and only a cursory investigation was carried out. He was awarded £20,000 for injury to feelings after he suffered depression and panic attacks because of racial discrimination.
Where a claim covers more than one type of discrimination, awards may be significantly higher: the average total injury to feelings award for combined claims in 2010 was £14,250. Indeed, in the case of Vohra v Kader t/a Bombay Stores, the Claimant was awarded two distinct awards for injury to feelings: £14,000 for sexual discrimination and £11,000 for racial discrimination. This followed a three year period during which she suffered constant enquiries as to when she was going to get married, which left her often in tears, humiliated and degraded. Her line manager had also made racial insults towards her and frequently asked her to clean his desk.
Although it will always depend on the facts of the case, we can identify a number of useful indicators of the likely size of any award. Important factors include the length of time over which the discrimination occurred, whether it was intentional or not, the effect of the discrimination on the individual concerned and any action taken by the employer to reduce or mitigate that effect.
Employers should obviously avoid exposing themselves to unlawful discrimination claims wherever possible. But the cases dealing with injury to feelings also demonstrate the importance of tackling inappropriate behaviour quickly and effectively in order to minimise liability. Failures in this respect can be very costly.
James Warren is a Partner and Rebecca Fisher is a Trainee Solicitor in the Employment and Pensions Group at Field Fisher Waterhouse LLP.