Discrimination in employment: Compensation for Injury to Feelings

Unlike unfair dismissal compensation, which is limited to financial loss, discrimination compensation can also cover non-financial losses, which more often than not will include an award for ‘injury to feelings’. This means that in some circumstances, a claimant can be awarded compensation for injury to feelings even when they have suffered no financial loss.

Interestingly, the Equality Act 2010 (which is the piece of legislation that covers discrimination in the workplace) does not include any guidance about how a tribunal should calculate or evaluate injured feelings financially. Historically, this has been left to the courts and the tribunals to provide guidance.

Helpfully, in late 2002 the Court of Appeal set clear guidelines for the amount of compensation to be awarded for injured feelings in the well-known case of Vento v Chief Constable of West Yorkshire Police. The Court of Appeal created three bands of potential levels of awards, which have commonly been referred to as the ‘Vento bands’ ever since. At the time, these were:

• The lower band: £500 – £5,000, for “less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”.
• The middle band: £5,000 – £15,000, for “serious cases, which do not merit an award in the highest band”.
• The top band: £15,000 – £25,000, 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.

Since 2017, the Vento bands have been increased annually each April by the President of the Employment Tribunals to keep them in line with inflation.

As at the time of writing (June 2021) the current Vento bands are as follows:

• The lower band: £900 – £9,100.
• The middle band: £9,100 – £27,400.
• The top band: £27,400 – £45,600.

What factors do the Employment Tribunal consider when quantifying injury to feelings?

In simple terms, the tribunal will focus on the effect that the discriminatory act or acts has had on the individual claimant. In my experience, the most relevant factors are the particular vulnerability of the claimant, the level of hurt or distress that has been caused to the claimant, the severity of the discriminatory actions towards the claimant, and in some circumstances, the position of the individual who has discriminated against the claimant.

On that point, it is also important to note that an injury to feelings award is not treated as a punitive award (i.e., to punish the employer). It is meant to be compensatory (i.e., to compensate the claimant).

As part of the tribunal’s assessment, it will also take into account whether the discrimination was simply a one-off incident or whether the discriminatory acts of the employer took place over a period of time. That said, even if the discrimination arose as a result of a one-off incident, it doesn’t necessarily mean that the injury to feelings award will fall into the lower Vento band; if a one-off incident was very serious and had a significant effect on the claimant, the compensation could be higher.

The burden of proof is on the claimant to show that their feelings have been injured and to demonstrate to the tribunal the extent of those injured feelings. This does not always mean injury in a medical sense, although it often can result in claims that discrimination has caused medical conditions, such as depression. The tribunal’s focus can sometimes simply be an analysis of the impact of the discrimination on a claimant’s feelings.