A one off act of discrimination does not limit the tribunal in making an injury to feelings award within the lowest Vento bracket.

Summary

The Employment Appeal Tribunal (‘EAT’) in the case of Base Childrenswear Ltd v Otshudi has held that when making an injury to feelings award within the Vento bands, a one off act of discrimination does not mean that the award has to fall within the lowest bracket.

Vento Bands

Vento Bands have derived from the case of Vento v Chief Constable of West Yorkshire Police 2003, where the Court of Appeal set clear guidelines for the amount of compensation to be given for injured feelings, and set out three bands of potential awards.

The current Vento bands, following a March 2019 update applying to claims after 6 April 2019, are as follows:

  • 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
Facts

Ms Otshudi, (‘the Claimant’) was employed by Base Childrenswear Ltd (‘the Respondent’) as an in-house photographer for 3 months. The Claimant had invested time and money studying for, and developing, her career. She had obtained this job in her chosen field and worked hard, so justifiably expected to remain employed for the foreseeable future.

The Claimant’s dismissal came out of the blue. At the dismissal meeting, the Respondent informed the Claimant of her dismissal, giving her a patently false reason for why her employment was being terminated, namely that she was being made redundant.

Amongst other things, the Claimant allegedly suffered racial harassment in respect of her dismissal. Accordingly, she pursued Employment Tribunal (‘ET’) proceedings, complaining of these various acts of harassment from the fact and manner of her dismissal.

Outcome

The ET upheld the Claimant’s complaint of racial harassment in respect of her dismissal. At the subsequent Remedies Hearing, the ET found that the Claimant’s injury to feelings fell to be considered within the middle of the middle Vento band and made an award of £16,000 under this head.

The Respondent appealed, contending that the award made was manifestly excessive, and that the one off act of discrimination should mean that the award falls within the lowest band.

The EAT contended that the fact the ET’s finding of discrimination related to an isolated event, the Claimant’s dismissal, did not mean it was required to assess the award for injury to feelings as falling within the lowest Vento band. The EAT highlighted that the question for the tribunal must always be “what is the particular effect on this individual complainant.” Having concluded that this was a serious matter, the middle Vento band was justified.

Implication for Employers

As long as tribunals have been astute not to allow double-recovery for factors already taken account under other heads, (e.g. monetary loss), when awarding employees for their injury to feelings, employers should be somewhat mindful that the compensation they will be required to pay, will not be limited to a lesser amount purely because it may be a one-off act of discrimination.

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.

The Legal 500 - The Clients Guide to Law Firms

UK Chambers logo

Best Companies - One to watch logo