On 5 September 2017, Presidential Guidance was issued by the Presidents of the Employment Tribunals in England and Wales, and Scotland increasing the levels of compensation which can be awarded to a Claimant for injury to feelings.
Injury to feelings
An award for injury to feelings can be made by the Employment Tribunal in certain claims, such as discrimination or detriment for having blown the whistle.
The award is intended to compensate the Claimant for non-financial loss, such as hurt, distress and anxiety. The award is separate to an award for financial loss, such as loss of earnings.
The Tribunal has discretion as to the amount of the award. It will consider various factors such as any medical condition the Claimant has or is suffering, the seriousness of what happened, the extent to which the employer sought to make amends, the period of discrimination or detrimental treatment and the actual effect on the Claimant.
A Court of Appeal case called Vento v Chief Constable of West Yorkshire Police (2002) distinguished three bands of compensation for injury to feelings. These are normally referred to as the “Vento bands”
1. The lower band: “appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.
2. The middle band: “serious cases, which do not merit an award in the highest band.
3. The top band: “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.” Only in “the most exceptional case” should an award for injury to feelings exceed the top of this band.
Increase
As a result of a recent consultation on the Vento bands, they have been increased. The new bands are:
A lower band of £800 to £8,400 (previously £600-£6,600);
A middle band of £8,400 to £25,200 (previously £6,600- £19,800); and
An upper band of £25,200 to £42,000, with the most exceptional cases capable of exceeding £42,000 (previously £19,800 to £33,000).
The new bands apply to cases submitted to the Tribunal on or after 11 September 2017.
The Presidents say they will review and, if necessary, amend the Presidential Guidance in March 2018 and annually thereafter.
What does this mean for employers?
The new bands represent an increase in potential liability for employers facing discrimination or whistleblowing detriment claims; it may become more expensive if an employer loses such a claim. However, employers should note that the majority of awards have historically fallen in the lower or middle bands, with only a few in the top band.
We await hearing about the first Tribunal decisions and subsequent statistics applying the increased figures.