How are employees compensated in discrimination cases over and above the loss of earnings that they may have incurred by way of an injury to feelings award.
Injury to feelings awards are, unlike unfair dismissal awards, unlimited.
The Tribunal will, if it considers that an employee has suffered discrimination, try to compensate that individual so that they are put in the position they would have been had the discrimination not taken place.
So, for example, if an employee has suffered a loss of earnings because of an act of discrimination, then the Tribunal can award that employee loss of earnings until such time as he or she is likely to secure another job earning the same money.
In addition these powers, Tribunals also have the power to compensate employees for the “injury to feelings” they would have suffered as a consequence of the discriminatory treatment.
Injury to feelings vs. financial loss
Injury to feelings awards are separate to financial loss claims and can, therefore, be made in addition to an employee’s claim for loss of earnings arising from a discriminatory dismissal. What this also means is that, if an employee is harassed or abused at work, but doesn’t incur any financial loss as a result, he or she can still make a claim for the injury to feelings for a sum of money to compensate them for the injury to feelings that they have suffered.
Vento Guidelines
The Tribunals follow specific guidance when determining how much compensation to award in each case. These guidelines are known as the Vento guidelines following the 2003 Court of Appeal Case of Vento vs Chief Constable of West Yorkshire Police (2 [2003] IRLR102).
These were updated quite recently to take account of inflation, but the “bands” set out by that case remain good law.
The bands of compensation
There are three bands: The lower band, the middle band and the upper band. Tribunal Judges must decide which of the bands the case falls into based on the evidence.
Lower band
The lower band is applied in “less serious cases, such as where the act of discrimination is an isolated or one-off occurrence” – £800 – £8,400.
Middle band
The middle band applies in “serious cases, which do not merit an award in the highest band” – £8,400 – £25,200.
Upper band
And the top band is used by Tribunals in “the most serious cases, such as where there has been a lengthy campaign of discrimination, discriminatory harassment on the grounds of sex or race” – £25,200 – £42,000.
The above updated Vento bands take into account the ruling in Simmons vs Castle in which discrimination awards were increased by 10%.