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Vento bands for injury to feelings

Otshudi v Base Childrenswear Limited

Ms Otshudi worked as an in-house photographer for Base Childrenswear Limited for just over 3 months until she was dismissed. Ms Otshudi complained of seven acts of racial harassment, six of which were dismissed as out of time and one which was upheld and directly related to her dismissal.

The decision to dismiss Ms Otshudi was taken and communicated by the Managing Director who told her that she was being made redundant. When Ms Otshudi questioned the reason for her dismissal and asked whether it was to do with her race, the Managing Director called another manager into the meeting, meaning there were three managers present. At this point, the Managing Director challenged Ms Otshudi’s claim of discrimination and told her to pack her things and leave immediately. Surrounded by three members of the management team, Ms Otshudi felt intimated and got upset. The reason given for the dismissal, redundancy, was later admitted by the Managing Director to be a lie, who asserted at the tribunal hearing that in fact he believed she had taken items of stock.

Ms Otshudi submitted a grievance and appealed against her dismissal which was ignored by the company. The Managing Director repeated the claim that she was dismissed due to redundancy but failed to provide Ms Otshudi with any evidence of this.

The ET awarded Ms Otshudi an injury to feelings award which they considered to be in the middle of the middle Vento band at £16,000. The tribunal was satisfied that both the reasons given for dismissal were not credible and her race had caused or contributed to her dismissal.

The ET separately considered a claim for aggravated damages in relation to the company’s failure to respond to Ms Otshudi’s grievance/appeal, the lie that she had been made redundant and the failure to respond to disclosure requests. It also made an award for personal injury as it found that she had suffered with depression in the 3 months directly after her dismissal. The ET then went on to make an uplift of 25% for the company’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures in relation to their failure to respond to the grievance/appeal.

The company appealed the amount of award claiming them to be manifestly excessive. In particular that the injury to feelings award had been placed in the wrong Vento band as it was a one off act of discrimination. The company also argued that the ET had double-counted by making an award in respect of the failure to respond to the grievance/appeal in both the aggravated damages award and the ACAS uplift.

Decision

The EAT dismissed the appeal. It considered the particular facts of the case when reviewing the totality of the award where Ms Otshudi had been dismissed out of the blue from a job in a career that she had invested a lot of time and money in, for which she considered herself to be in long term employment, where the reason for her dismissal had been a lie and where she had faced managerial intimidation when contesting her dismissal. The EAT set out that the Vento bands were not prescriptive and injury to feelings awards were considered on a case by case basis. However, it did allow the appeal to a limited extent in relation to double-counting. The award of aggravated damages and the ACAS uplift were both for the failure to respond to a grievance/appeal. Although it considered that the aggravated award was not excessive (this is what the company had appealed against), it did hold that awarding this and awarding the ACAS uplift should have been considered as a double-recovery. The aggravated damages award was reduced by £1000 as a consequence.

Comment

An employee succeeding with a claim for discrimination may be awarded compensation for injury to feelings. This is an award of damages aimed as a remedy for the hurt, humiliation and degradation suffered by the employee and will be considered separately from any claim for financial loss such as loss of earnings. Injury to feelings awards are assessed using three bands, known as Vento bands after the leading case in which they were established. They are periodically updated to reflect inflation. As of April 2019, the bands are as follows:

  • The lower band applies to “less serious cases, such as where the act of discrimination is an isolated or one off occurrence” and is awarded £900 to £8,800.
  • The middle band “should be used for serious cases, which do not merit an award in the highest band” and is awarded £8,800 and £26,300.
  • The top band is appropriate for “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment…” and is awarded £26,300 to £44,000.
  • Awards in excess of £44,000 will be awarded in only the most exceptional cases.

As this case highlights, the awards will always be considered on a case by case basis. The Tribunal will consider the effect it had on the individual employee to determine if adjustments can be made to the Vento band the claim falls. The EAT made it clear that just because a claimant has suffered a one off act of discrimination, it does not mean the injury to feelings award will automatically fall within the lower Vento band.

If you have any queries in relation to discrimination or any other HR queries, please contact the employment team on 01228 553600 or 01524 548494.

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