The price of injured feelings
29 May 2012
Discrimination claims can be extremely costly
for employers, involving potentially unlimited damages. A key
element of nearly all discrimination awards is a sum representing
'injury to feelings'. Estimating damages for injury to
feelings can be the 'great unknown' when calculating the potential
value of a claim. The relevant legislation is silent on this
point and, until 2002, there was little guidance available.
However, the case of Vento v Chief
Constable of West Yorkshire Police then clarified the issue,
suggesting three basic bands of potential awards:
- Top band: £15,000 - £25,000 for the most
serious cases, such as where there has been a lengthy campaign of
- Middle band: £5,000 - £15,000 for serious
cases which do not merit an award within the highest band.
- Lowest band: £500 - £5,000 for less serious
cases, such as one-off or isolated events.
Subsequently, in the 2010 case of Da'Bell v
NSPCC, the Employment Appeal Tribunal (EAT) revisited the
Vento guidelines and increased the levels of award to
- Top band: £18,000 - £30,000
- Middle band: £6,000 – 18,000
- Lowest band: £500 - £6,000
Tribunals now exercise discretion within these
guidelines, based on the facts of the case and the period over
which any discrimination occurred. Case law suggests the
focus should be on achieving a balance: so that awards are not so
high that they amount to a windfall, nor so low as to diminish
respect for the law.
According to Equal Opportunities
Review, the average injury to feelings award in 2010 was
£5,908. Over half of awards fell within the lowest band of
the Vento guidelines and only 3% in the top band.
Nonetheless, the average awards by different strands of
discrimination were as follows: £7,810 for race, £6,147 for
disability and £5,719 for sex discrimination.
Awards are very case-specific. In
Davies v Remploy Ltd, the Claimant was awarded £6,000
injury to feelings following his discovery that he was mockingly
referred to as 'Ironside' for being a wheelchair user, despite the
fact that he was never called this to his face.
In Sahni v Poundland Ltd, the
Claimant, who was blind, received £14,000 for injury to feelings
after not being provided with recommended support systems.
The Tribunal took into account that he had suffered depression and
that the process had taken four years, but also that his employer
had not been unpleasant towards him.
In Browne v Central Manchester University
NHS Foundation Trust, concerns about the Claimant's
performance were not dealt with according to proper NHS procedure,
despite frequent grievances being raised, and only a cursory
investigation was carried out. He was awarded £20,000 for
injury to feelings after he suffered depression and panic attacks
because of racial discrimination.
Where a claim covers more than one type of
discrimination, awards may be significantly higher: the average
total injury to feelings award for combined claims in 2010 was
£14,250. Indeed, in the case of Vohra v Kader t/a Bombay
Stores, the Claimant was awarded two distinct awards for
injury to feelings: £14,000 for sexual discrimination and
£11,000 for racial discrimination. This followed a three year
period during which she suffered constant enquiries as to when she
was going to get married, which left her often in tears, humiliated
and degraded. Her line manager had also made racial insults
towards her and frequently asked her to clean his desk.
Although it will always depend on the facts of
the case, we can identify a number of useful indicators of the
likely size of any award. Important factors include the
length of time over which the discrimination occurred, whether it
was intentional or not, the effect of the discrimination on the
individual concerned and any action taken by the employer to reduce
or mitigate that effect.
Employers should obviously avoid exposing
themselves to unlawful discrimination claims wherever
possible. But the cases dealing with injury to feelings also
demonstrate the importance of tackling inappropriate behaviour
quickly and effectively in order to minimise liability.
Failures in this respect can be very costly.
Warren is a Partner and Rebecca
Fisher is a Trainee Solicitor in
and Pensions Group at Field Fisher Waterhouse