26/07/2017

Should injury to feelings awards in discrimination claims increase by £10,000?

NEWS

The Presidents of the Employment Tribunals have issued a judicial consultation on a proposal to uprate the bands of compensation for injury to feelings awards.  The consultation invites views on the proposed approach to uprating the so-called Vento bands.  

DETAILS

When a claimant successfully pursues a discrimination complaint against a respondent, the Employment Tribunal may order the respondent to pay compensation to the claimant.  An award for compensation can include compensation for injured feelings.

It has long been recognised that the assessment of injury to feelings is not an exact science.  As the equality legislation contains no guidance on how to evaluate injured feelings, it has been left to the tribunals and courts to decide. 

Back in 2002, in the leading case of Vento v Chief Constable of West Yorkshire Police, the Court of Appeal identified three broad bands of compensation for injury to feelings awards.  Whilst the Court of Appeal commented, at the time, that tribunals should take account of the “value of the sum [of the injury to feelings award] in every day life” it took until 2009 for the EAT to uprate the bands for inflation and since then the bands have not changed.  

Most recently, the Court of Appeal in the case of De Souza v Vinci Construction (UK) Ltd ruled that a 10% uplift must apply to discrimination awards for injury to feelings, and invited the Presidents of the Employment Tribunals to issue fresh guidance which adjusted the Vento figures for inflation and incorporated the 10% uplift.  

In accepting the invitation, the Presidents of the Employment Tribunals have reached a provisional view that the appropriate measure of the rate of inflation is the Retail Prices Index (as opposed to the Consumer Prices Index) although it is seeking views on this. The proposed approach is to uprate the original Vento bands taking into account the rate of inflation as of 1 April 2013, applying the 10% uplift at that point and then uprating again to take account of the rate of inflation as at the date of the Presidential Guidance.  

The new bands for awards for injury to feelings would apply to any claim presented on or after the date of the Presidential Guidance.  

The Vento Bands and proposed increases are as follows: 

Band

Vento 

New Band

Lower – for less serious cases

£500 - £5,000

£1,000 - £8,000

Middle – for serious cases which do not merit being in the higher band

£5,000 - £15,000

£8,000 - £25,000

Upper – the most serious cases

£15,000 £25,000

£25,000 - £42,000

If you are interested in responding to the consultation, details can be found at page 4 of the consulation  https://www.judiciary.gov.uk/wp-content/uploads/2017/07/vento-bands-consultation.pdf .  Responses should be received by Friday, 25 August 2017.

COMMENT

Nick Benton comments: "There is no doubt that the bands for injury to feelings awards will increase and discrimination claims are on the rise. To combat this risk, employers should ensure that they have a comprehensive equality policy in place and train staff about equality.  We are on hand to support businesses in tackling discrimination issues and can undertake policy reviews as well as offering a range of training packages to help employers establish equality in the workplace.”

If you require further assistance, please contact a member of the team.