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How do you calculate injury to feelings?

In this alert we look at what factors an Employment Tribunal will consider to determine an injury to feelings award. 

Komeng v Creative Support Limited

Mr Komeng describes himself as a black African and is employed by Creative Support Limited as a Waking Night Care Worker. He was keen to develop himself and asked if he could be enrolled on a course to advance his career. Mr Komeng also requested flexibility with weekend shifts. His requests were refused. Other named comparator employees of a different race had been allowed to enrol on courses and were given flexibility with weekend shifts.

Mr Komeng brought a successful claim in the Employment Tribunal for direct race discrimination.

In discrimination claims the Employment Tribunal has to assess whether to award compensation for injury to feelings. This is compensation for the upset and distress that an employee has suffered as a result of discrimination. In assessing compensation for injury to feelings an Employment Tribunal must have regard to what are known as the ‘Vento guidelines’ (Vento v Chief Constable of West Yorkshire Police) as amended and updated, which split awards for injury to feelings into following current bands:

  • a lower band of £900 to £8,800 (less serious cases)
  • a middle band of £8,800 to £26,300 (cases that do not merit an award in the upper band), and
  • an upper band of £26,300 to £44,000 (the most serious cases), with the most exceptional cases capable of exceeding £44,000.

The Employment Tribunal found that Mr Komeng was resilient and therefore made an award in the lower band of £8,400. It noted when assessing compensation for injury to feelings, that it should focus on the actual injury suffered by Mr Komeng, rather than the gravity of the acts perpetrated by Creative Support. Mr Komeng continued to work for several years for Creative Support despite receiving unequal treatment, therefore the Employment Tribunal concluded that his distress was ‘not insignificant’. Mr Komeng appealed to the Employment Appeal Tribunal (“EAT”), arguing that the award was too low.

Decision

The EAT rejected the appeal. It held that the Tribunal had correctly considered the effect of the discriminatory treatment on Mr Komeng and not the gravity of Creative Support’s actions.

The EAT said there is no hard and fast rule that the lower band is only appropriate for one off acts.

Comment

Employers should remember that an Employment Tribunal will consider the impact of the treatment on an employee when assessing compensation. Therefore, compensation will differ depending on the effect on the person who has been discriminated against. This makes it very difficult to predict what level of compensation will be awarded in any particular case.

If you have any queries in relation to discrimination, injury to feelings awards or any other HR queries please contact our employment team on 01228 552600 or 01524 548494.

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