By Caroline Cockbain, Associate Director.
When deciding how much compensation to award to a successful claimant in discrimination cases, it is worth remembering that the employment tribunal is able to make an award not only in respect of financial loss, but also in respect of non-financial loss, or so-called ‘injury to feelings’.
Discrimination legislation does not clarify how such compensation should be calculated, so when deciding on the level of an award for injury to feelings, the employment tribunal has long referred to a case called Vento which set out three clear award ‘bands’, depending on the seriousness of the discrimination which has taken place:
- 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 upper band: "the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment". (Only in "the most exceptional case" should an award for injury to feelings exceed the top of this band.)
There are a number of factors that the employment tribunal considers when deciding the appropriate band for an award, including vulnerability of the claimant, the degree of distress caused, the position of the individual who has discriminated, and the seriousness of the treatment. From the employer’s perspective, it is notable that the employer’s size and/or resources do not have a bearing on the calculation of the award.
The ‘bandings’ are revisited now in line with inflation, and in respect of discrimination tribunal claims presented on or after 6 April 2018, it has recently been announced that the Vento bands shall be increased as follows:
- The lower band is increased to between £900 and £8,600;
- The middle band is increased to between £8,600 and £25,700; and
- The upper band is increased to between £25,700 and £42,900, with only the most exceptional cases capable of exceeding £42,900.
If you have any questions about liability for discrimination, or you would like support on any other employment law matters arising, please do not hesitate to contact a member of the team on 0141 331 5150.