On 24 July 2017 the Ministry of Justice announced a consultation exercise by the Employment Tribunals in relation to the current levels of compensation for injury to feelings, known as the Vento guidelines, derived from the case of that name.
Compensation for injury to feelings can be claimed from an Employment Tribunal when pursuing certain claims. Most commonly injury to feelings is relevant when a Claimant alleges that they have been the victim of unlawful discrimination derived from breaches of the Equality Act 2010. Examples are claims of sex and race discrimination, as well as others in reliance upon the various protected characteristics and the legislation.
Most employment law claims focus upon loss as the basis for a remedy, for example in an unfair dismissal claim compensation arises from the basic award (equivalent to a statutory redundancy payment) and the compensatory award, mainly loss of earnings. Most Claimants who are unfairly dismissed are very upset about their treatment and frequently are unwell, but there is no general compensation award for upset at the dismissal. Similarly, recovery of sums unlawfully deducted from wages will lead to repayment of money but nothing else.
Damages for injury to feelings are assessed to reflect the special impact arising from unlawful discrimination. It is not a personal injury award, instead it is an award to reflect the upset of the individual, and can also include consideration of facts, including sickness, taking medication, damage to reputation, and an assessment combining objective analysis of the facts and the subjective reaction of the Claimant, and this would include consideration of the duration of the discriminatory treatment. The more serious the conduct, the more likely it is that the award will be higher. It is also one of the few awards from an Employment Tribunal which can carry an entitlement to interest.
Whilst there is no cap on compensation for injury to feelings Tribunals have for many years applied a bracket of awards to reach a conclusion on the correct figure.
The original Vento proposals have increased to confirm at the present the following bands:-
- Lower band £600.00 – £6,000.00
- Middle band £6,000.00 – £18,000.00
- Higher band £18,000.00 – £30,000.00
There is some flexibility in the assessment on a case by case basis, but either in negotiations or at a hearing cases are allocated to a band, noting the very broad range of figures. The banding reflects the facts of each case and the Tribunal panel should use their good judgement and discretion to reach an appropriate figure.
The current consultation envisages that the figures might increase in the near future as follows:-
- Lower band £1,000.00 – £8,000.00
- Middle band £8,000.00 – £25,000.00
- Upper band £25,000.00 – £42,000.00
When figures are determined, the approach adopted in the consultation exercise is for an assessment to be undertaken every 12 months and for figures to increase automatically based upon the latest RPI, as happens in other areas of Tribunal compensation.
It is a matter of social policy that discrimination laws exist and operate to protect rights and to provide an effective remedy for victims, as well as a deterrent for those who might commit discriminatory acts.
Injury to feelings is an element of remedy for discrimination claims, but the concept is also relevant to other claims, such as trade union victimisation and whistleblowing cases. It is correct for the Tribunal Service to consult on this important issue, to ensure that the law maintains the link between an effective remedy and the impact of discrimination on the victim, as well as developments in other legal areas such as the law on general damages for personal injury and the impact of inflation. An injury to feelings award is designed to compensate victims, and it is an important element of the case to show that discrimination is not only about financial loss.
All are encouraged to review the consultation paper which has been published and to comment within the prescribed timescale.