Understanding injury to feeling awards in discrimination claims: helpful guidance from the EAT

If an employee brings a successful discrimination claim against you, how much will they get by way of compensation for their hurt and upset? Two cases decided by the Employment Appeal Tribunal (EAT) provide useful guidance. 

The law

When a claimant wins a discrimination claim, a tribunal can order the respondent to pay compensation which covers their:

• financial losses (including loss of earnings, loss of pension etc.); and;
• injury to feelings.

The Equality Act 2010 doesn't provide any guidance amount how much should be awarded. That responsibility has fallen to the courts.

The Court of Appeal in Vento v Chief Constable of West Yorkshire Police provided distinct guiding principles for tribunals:

• Awards for injury to feelings should compensate the claimant for feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression etc. 
• Compensation should fall within one of three bands:
  • Lower band of £1,200 to £11,700 for less serious cases
  • Middle band of £11,700 to £35,200 for serious cases that do not merit an award in the upper band
  • Upper band of £35,200 to £58,700 for the most serious cases
  • Awards over £58,700 can be awarded in the most exceptional cases

These are the amounts from April 2024, and they are reviewed each year.

It can be tough to dispute a tribunal's assessment; you can't appeal just because you think it's too high, and a claimant can't appeal just because they don't think they've been awarded enough. 

You will only be able to challenge the award if the tribunal has used the wrong legal principle, misunderstood the facts, or made a completely wrong estimate of the loss.

What's excessive?

In Eddie Stobart Limited v Miss Caitlin Graham, the claimant was made redundant. She brought an automatic unfair dismissal claim and a discrimination claim. She argued that the grievances she raised during the redundancy consultation were ignored because she was on maternity leave. Her unfair dismissal claim failed but she won her discrimination claim and received £10,000 for injury to her feelings. 

On appeal, the EAT found that this amount was manifestly excessive and perverse. 

The EAT said that the tribunal should have only considered the upset caused to Miss Graham because her employer had ignored her grievances. Her distress arising from being dismissed wasn't relevant because that claim had failed. 

Helpfully, they highlighted these points for tribunals to consider: 

• Claimant's description of the injury: what does the claimant say about how the treatment made them feel?
• Duration of consequences: how long were they upset? 
• Effect on past, current, and future work: has the treatment affected their enjoyment of work, made past work experiences less positive, or reduced their likelihood of staying in the same line of work in the future? 
• Effect on personal life or quality of life: has the treatment harmed their personal relationships, private activities, hobbies etc.? 

Whilst tribunals should focus on how the discrimination affects the claimant, they may also need to consider how/where it took place. This can provide a benchmark, particularly when there is not much other evidence available. The EAT said it could cause, for example, greater harm if it's played out in front of colleagues/others, or if there's a power imbalance between the parties.

In this case, the only evidence to consider was the claimant saying that she was “shocked” and “upset” because of the employer's “dismissive” attitude towards her. It was right, given the lack of evidence, to go on to look at how the discrimination was carried out. Here the employer missed responding to two grievances: Miss Graham had not been humiliated or treated discourtesously. There was no lasting impact on her either. It didn't harm her work (she found another job almost immediately) and there was no impact on her personal life or quality of life.

The EAT substituted an award of £2,000 plus interest. It would have been less but the EAT accepted that she was having to chase up her grievances when she should have been enjoying her maternity leave. This added to her injury to feelings. 

On the flipside, here's an award that fell short…

In Sadia Shakil v Samsons Limited, after the claimant told her employer about her morning sickness, her hours were cut, and she was made redundant. She won her pregnancy discrimination claim and was awarded £5,000 for injury to feelings.

On appeal, the EAT said that applying the Vento guidelines generally requires tribunals to:

• identify the discriminatory treatment
• hear evidence from the claimant about any injury to feelings
• make findings of fact 
• identify the relevant guidelines applicable to the award
• state the band the injury to feelings award falls within and explain why; and
• explain where within the band the injury to feelings award falls and why. 

In this case, the tribunal ignored the Vento bands. 

It didn't consider whether her injury to feelings were exacerbated by her pregnancy or about her concerns for her unborn child. The EAT said that pregnancy should be treated as an important component of a woman's individual circumstances. This will be particularly relevant where the employee's upset/hurt has reduced their joy in having a baby or has caused them to worry about the impact on their unborn child. 

The tribunal should also have factored in the respondent's behaviour during litigation. They made false assertions and threatened the claimant with publicity if she continued her claim. 

Instead, the tribunal wrongly considered the respondent's small size and limited resources. This should not have influenced the tribunal; the effect on the claimant is what matters.

The EAT said the injury to feelings in this case sits in the middle Vento band given the period over which the treatment occurred and the effect it had on the claimant. The case has now been sent to another tribunal to determine the exact award. 

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