Discrimination claims are unlike many other claims in the Employment Tribunal (ET) in that compensation is not limited to financial loss, but can also be awarded for injury to feelings. This is separate from any compensation for financial loss, meaning a Claimant can receive an award for injury to feelings even where no financial loss has been suffered.
There is no specific guidance as to how this award should be calculated, and it is for the ET to evaluate the injured feelings financially. Factors that will be considered in deciding the level of the award include personal characteristics of the Claimant, any medical condition from which the Claimant suffers, the nature of the Claimant’s job, the manner in which the respondent dealt with any grievance, the degree of hurt or upset caused and the seriousness of the treatment. The main consideration is the effect on the Claimant and the award is intended to be compensatory rather than punitive. There is no need to show an actual medical injury, as the award is concerned with injured feelings rather than in a medical sense.
- Vento guidelines
The leading case in relation to injury to feelings awards is Vento v Chief Constable of West Yorkshire Police (No 2) . As a result of this case, the Court of Appeal set clear guidelines for the amount of compensation to be given for injury to feelings and set out three bands of potential awards:
- The lower band: “appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”.
- The middle band: “serious cases, which do not merit an award in the highest band”.
- The top band: “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race”. Only in the most exceptional cases should an award for injury to feelings exceed the top of this band.
These bands are subject to inflationary increases, following an Employment Appeal Tribunal (EAT) decision in September 2009 setting out adjusted bands. Tribunals are entitled to adjust the Vento band ranges to take account of clear evidence of a change in the value of money over time when deciding the correct award to give, for example in line with the RPI. The Vento bands are also subject to change in light of Presidential Guidance published by the Tribunals. This guidance was initially introduced in 2017 and is reviewed annually.
Vento Bands from 6 April 2021
- A lower band of £900 to £9,100.
- A middle band of £9,100 to £27,400.
- An upper band of £27,400 to £45,600 (in exceptional circumstances, awards can exceed £45,600).
The guidelines set out in the Vento judgement set out which types of claims will fall within which band:
The lower band is “appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence”.
The middle band is appropriate for “serious cases, which do not merit an award in the highest band”.
The upper band is appropriate for “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race”. Only in “the most exceptional case” should an award for injury to feelings exceed the top of this band.
It is expected that the Vento Bands will continue to increase each year in line with RPI.
There is no minimum award, however an award of less than the lower limit of the lowest band could be open to challenge as such awards could be considered so low as to not be a proper recognition of the injury to feelings.
Employers should be aware that where a Claimant brings a claim for discrimination, even if no financial loss is suffered, an injury to feelings award can be given and this may be a potentially large sum, depending on the severity of the allegations and the effect on the Claimant.
Injury to feelings awards in discrimination claims; what is the purpose and what are the current Vento bands?
The law and practice referred to in this article or webinar 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.