Where a claimant is successful in a claim for discrimination, the tribunal will invariably award compensation for “injury to feelings”.
The purpose of an injury to feelings award is to compensate the individual for the impact of the discrimination, in particular the hurt, distress and upset suffered.
This award is calculated in accordance with the “vento” guidelines which split into three bands:
- Lower band £900 to £8,800 (less serious cases)
- Middle band £8,800 to £26,300 (cases that do not merit an award in the upper band)
- £26,300 to £44,000 (the most serious cases), with the most exceptional cases capable of exceeding £44,000
In the past, tribunals have often taken the view that where there is a one-off act of discrimination, the compensation would usually fall within the first (lower) band i.e no more than £8,800. However, the recent case of Base Childrenswear Ltd v Otshudi has warned tribunals against taking such a rigid approach.
When the employer dismissed Ms Otshudi, this amounted to a one-off, but nevertheless, “serious” act of race discrimination. The tribunal recognised that Ms Otshudi had served the employer well for a number of years and now had to deal with the sudden loss of her job in a career which she had chosen and invested time and study in developing.
The employer argued that as it was an isolated act it should have been in the lower vento band. However the tribunal took into account the impact which that act had on the individual and awarded £16,000 in compensation for injury to feelings.
The employer appealed the decision to the employment appeal tribunal, however was unsuccessful. In affirming the original decision, the employment appeal tribunal took the view that, when considering single acts of discrimination, the vento guidance should not “place a straightjacket on a tribunal to only award compensation in the lower band”. It stated that “the focus must always be, what was the particular effect on the individual?”
This is a welcome decision which indicates that tribunals are willing to take a pragmatic and holistic approach when considering the appropriate level of compensation. Here, the tribunal focused, quite rightly, on the impact of the discrimination, rather than on how many occasions it occurred.
If you require assistance in relation to an employment or discrimination issue please contact our specialist team on 01616 966 229.
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