Injury to feelings: what matters most, cause or reaction?
Posted on 25th September 2019 at 10:24
In successful discrimination cases an employment tribunal has the power to make a financial award to compensate a claimant for injury to feelings caused by discriminatory conduct; the hurt that caused by it and knowing that the conduct was unlawful discrimination. There are some similarities with damages for personal injury.
Injury to feelings cannot be easily valued in the same way as financial loss, such as lost earnings. The same act of discrimination could impact completely differently on two different victims. There is no standard or typical response for those experiencing discrimination.
Injury to feelings includes upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, stress and depression.
Damages for injury to feelings are awarded based on three broad bands laid out in the Vento guidelines’, so called because they were first established in the case of Vento v Chief Constable of Yorkshire Police (2003):
Top band for the most serious cases of discrimination, such as a lengthy campaign of discriminatory harassment
Middle band for cases which are serious but do not merit the highest band
The lowest band for less serious cases, such as isolated or one-off acts of discrimination.
The financial range for each vento band is updated annually in April - you will find the updated amounts on our compensation and damages page.
So how does the tribunal decide what to award? Does it look at the nature of the discriminatory act, or the suffering it caused? And how does it decide what is ‘serious’, or whether a case ‘merits’ a higher band?
In the 2014 case of Cadogan Hotel Partners Limited v Ozog, it was held that the focus should be on the injury suffered by the Claimant as a result of the discriminatory conduct, and not on the acts of the Respondent. This was upheld in the recent case of Komeng v Creative Support Limited (2019).
Komeng v Creative Support Limited (2019)
The Claimant, Mr Komeng, was a Waking Night Care Worker who describes himself as black African. He had been employed by Creative Support Limited since June 2011. Mr Komeng had asked to be enrolled on Level 3 NVQ for professional development, but his employer did not take any steps to enrol him. Other comparable staff of a different race had been enrolled on this course.
During his employment, Mr Komeng was scheduled to work every weekend. In 2014 he requested that weekend shifts be shared among staff so that he could have some weekends off, but the request was denied.
The tribunal found that Mr Komeng had been discriminated against and awarded damages near the top of the lower band. In explaining this award, the tribunal stated that Mr Komeng “had displayed a remarkable resilience in the face of the discriminatory treatment that he had suffered over a considerable period of time.” Mr Komeng had continued to work for Creative Support Limited for several years, and “had not given evidence to suggest that he had been as adversely affected as many others might have been.”
The Employment Appeal Tribunal upheld this decision, saying that “We are all different and the impact of discrimination is an individual experience.” Other tribunals might have reached a different decision, but that does not mean there was any error of law. This is a matter for the tribunal to judge on the facts of the case.
While the lowest Vento band is described as being for cases “such as” one off incidents, that does not mean that only isolated acts can be granted damages within the lower band. Vento bands are guidelines rather than rigid categories.
What does this mean for my case?
This means that an employer could discriminate against two employees in the same way but be ordered to pay one more damages than the other, based upon how the employees reacted to the discrimination.
It may seem unfair that Mr Komeng was, in effect, penalised for showing resilience. This does mean that an employee who was severely affected would receive damages in line with their suffering, even if others would not have suffered so much. If compensation was based simply on the act itself, the tribunal would be forced to ignore the suffering before them and decide on what they felt was the ‘right’ reaction, despite not having been in the situation themselves.
The tribunal in this case relied on indicators such as how long Mr Komeng continued to work for his employer, while also stating a lack of evidence to show any adverse effect. This isn’t to say that resigning is the only option to demonstrate that you are unhappy with your treatment. You can continue working while being honest with your employer about how a situation is making you feel, and any effect this is having on your general wellbeing.
The importance of legal advice in setting out your claim
Once again, the tribunal emphasised why it is important to get advice early and plead your case correctly: “Had it been established before us, or even argued, that the Claimant would have been promoted had he been allowed to obtain the Level 3 Qualification, this would have pushed the award for injury to feelings into the middle Vento band.”
It is vital that you set out your case correctly when applying to the tribunal. Contact us for help to set out your claim effectively.
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