Individuals who bring successful discrimination claims are entitled to be compensated for the upset and hurt they have suffered by way of an injury to feelings award. These awards are separate from and in addition to awards to compensate for financial loss and can be made even where no financial loss has been suffered.
Awards for injury to feelings have been substantially increased for all claims presented on or after 11 September 2017.
In 2002 the Court of Appeal set out three bands for injury to feelings awards, which became known as the “Vento” bands after the name of the case which established them. They were increased again in 2009 but following a number of challenges about whether a 10% uplift should be applied to employment tribunal injury to feelings awards, the Presidents of the Employment Tribunals in England, Wales and Scotland have recently issued new guidance and increased the awards to reflect inflationary changes and the 10% uplift.
The new bands are as follows:
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Lower band suitable for one-off and isolated incidents which are considered to be less serious
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£800 to £8,400
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Middle band suitable for cases that do not merit an award in the upper band
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£8,400 to £25,200
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Upper band suitable only in the most serious cases which was where there has been a lengthy campaign of harassment
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£25,200 to £42,000 with the most exceptional cases capable of exceeding £42,000
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Although these increases apply to claims presented on or after 11 September 2017, we expect to see parties argue that they should apply to cases that predate this. Employers who lose discrimination claims should now expect to pay higher injury to feelings awards.
It is worth remembering that a claimant does not need to prove that they have suffered any ill health or produce medical evidence in order to get an injury to feelings award – although if they do they may get a higher figure. The tribunal will consider the extent to which the victim of discrimination has had their feelings injured and will attribute a financial value to that injury. Awards in the upper band are rare (most awards are in the upper lower and middle bands) but these can now amount to a considerable cost to an organisation.
We anticipate that claimants will be asking for higher awards in settlement discussions, as well as in employment tribunals, which could make the cost of settling cases higher also.
Published: 9 October 2017
Employment Law Update - October 2017
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