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Discrimination: Vento bands increased for injury to feelings awards

Following a judicial consultation, the bands of compensation for injury to feelings in discrimination cases have been increased. The new bands, set out below, apply to claims presented on or after 11 September 2017.

Lower band

£800 - £8,400

Middle band

£8,400 - £25,200

Upper band

£25,200 - £42,000

Exceptional cases

£42,000+

 

The new bands were calculated in line with inflation and by applying the 10% Simmons v Castle uplift, rounded up or down to the nearest £100. The increases will be reviewed in March 2018 and every year thereafter.

Under the Equality Act 2010, awards for injury to feelings can be made in discrimination cases. Claimants don’t need to show medical evidence of injury to feelings. While awards should be compensatory rather than punitive, tribunals attribute a financial value to the claimant’s injury to feelings. The process for quantifying these awards is therefore not always straightforward, nor an exact science.

In the case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 the Court of Appeal set out guidelines in an attempt to make the process easier, identifying three bands of potential awards, ranging from a minimum award of £500 up to a maximum of £25,000. Lower band awards were for one-off incidents and middle band awards for those subject to multiple instances of discrimination, with upper band awards reserved for those who have been subjected to a campaign of discrimination and/or particularly distressing discrimination. The band values have increased by subsequent case law since they were set in 2002.

In 2017 in the case of Pereira de Souza v Vinci Construction UK Ltd [2017] EWCA Civ 879, the Court of Appeal ruled that the 10% Simmons v Castle uplift must apply to discrimination awards for injury to feelings and psychiatric injury. This ruling led to the judicial consultation.

Whilst the consultation has provided some much-needed clarification, it is still extremely difficult for employers to work out the extent of any potential liability in a discrimination claim. Case law varies wildly from lower band awards for those who can ‘stick up for themselves’, to high middle or upper band awards for employees who, for whatever reason (age, ill health or disability) may be more vulnerable, even when the conduct in question seems hardly differentiable.

What is clear is that employers may be able to avoid being held vicariously liable for the discriminatory actions of their employees if they can demonstrate that they have taken reasonable steps to educate their employees through regular training.

For any training or advice on these issues, get in touch with employment partner Claire Knowles at cknowles@acuitylegal.co.uk or 029 2067 4404.

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