EAT reaffirms that when calculating an injury to feelings award, the effect of the conduct on the Claimant is the relevant consideration, rather than the gravity of the Respondent's actions. (Komeng v Creative Support)

The Employment Appeals Tribunal (‘EAT’) in the case of Komeng v Creative Support has reaffirmed that when making an injury to feelings award within the Vento bands, the relevant calculation is the effect of the conduct on the Claimant, rather than the gravity of the Respondents actions.

Vento Bands:

Vento Bands are the bands of compensation that Employment Tribunals can award for injury to feelings in discrimination cases. The current bands of compensation are:

  • The lower band (less serious cases): £900 to £8,800
  • The middle band: £8,800 to £26,300
  • The upper band (the most serious cases): £26,300 to £44,000

For more information about the current Vento Bands please see our May 2019 Employment Bulletin:

Facts:

Mr Komeng (‘the Claimant’) brought a claim in the Employment Tribunal against Creative Support (‘the Respondent’) for direct race discrimination. The Claimant worked for the Respondent continuously as a support worker since 2011.

The Employment Tribunal (‘ET’) agreed with the Claimant and held that the Respondents failure to enrol him on a course that would develop him professionally, in contrast to the way that named comparators of a different race has been treated, constituted direct race discrimination. The Tribunal also found that it was unlawful direct race discrimination for the Claimant to have had to work every weekend, whereas his comparators were not required to do so.

When assessing compensation for injury to feelings, the Tribunal considered the Vento bands and the case of Cadogan Hotel Partners Limited v Ozog [2014] where the EAT held that the focus should be on the actual injury suffered by the Claimant and not the gravity of the acts of the Respondent.

The ET determined that the failure to enrol the Claimant on the course and the refusal to have some weekends off, ‘must have caused significant upset and distress’, considering he had to work alongside colleagues who had less continuous service, who had completed the course and who did not have to work weekends. The Tribunal considered that the Claimant’s perseverance to develop his professional qualifications for several years, in the face of refusal, ‘indicates, his distress was not insignificant’. The top end of the lower Vento Band was awarded and the Claimant received £8,400 in compensation. The ET did not award interest as there was no claim for interest.

The Claimant appealed the ET decision on the grounds of the ET’s failure to award interest on the compensation and the placing of the award for compensation in the lower, rather than the middle of the three Vento Bands.

Outcome

The EAT held that the ET had not erred in law in determining that the appropriate level of compensation for injury to feelings was in the lower Vento band.

The EAT emphasised that the impact of discrimination is an individual experience and that discriminatory behaviour may affect individuals differently. They highlighted that the ET had correctly identified the principle that the focus should be on the actual injury suffered by the claimant and not the gravity of the acts of the respondent.

The EAT further held that the evidence presented by the claimant did not suggest he had been as adversely affected as others might have been and that he ‘displayed ‘remarkable resilience’ despite long-term discriminatory treatment. It further confirmed that the lower Vento band is not just for one-off incidents and that the ET had acknowledged the seriousness of the treatment by awarding the highest level within the lower band.

However the EAT held that the ET erred in failing to calculate interest on the compensation awarded. With the Respondent’s consent, the ET’s compensation award was upheld but was substituted for the correct interest figure of £12,757 in accordance with s35(1)(a) of the Employment Tribunals Act 1996.

Implications for Employers

In order to prevent disputes with employees, employers should remain mindful of their actions and how they will be received by employees. Please see the following article from our June bulletin on when acts of discrimination can go above the lower Vento Band.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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