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In many Employment Tribunal claims, such as unfair dismissal and breach of contract, most of the compensation is based on financial losses suffered by the claimant as a result of their employer’s unlawful conduct.
Unlike unfair dismissal claims, compensation for discrimination, whistleblowing detriment and trade union membership claims can cover non-financial losses suffered by a claimant. This will often include an injury to feelings award. Importantly, compensation for injury to feelings can still be awarded where the claimant has suffered no financial loss at all. Compensation for injury to feelings is intended to reflect the impact that the conduct has had on the employee.
In the case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, the Court of Appeal set clear guidelines for the amount of compensation to be awarded where a claimant successfully claims injury to feelings. The Vento bands are increased annually each April, in line with inflation, by way of Presidential guidance. There are three bands for the Tribunal to consider, being the lower band, the middle band and the top band.
When is each band relevant?
- The lower band is relevant for less serious cases, such as where the prohibited act was an isolated or one-off occurrence.
- The middle band is relevant for more serious cases, which do not merit an award in the highest band.
- The top band is only used for the most serious cases, such as where there has been a lengthy campaign of discrimination on the ground of sex or race.
Only in “the most exceptional case” should an award for injury to feelings exceed the top band. This is reflected in the Employment Tribunal claims and awards statistics, which show that in 2019/2020, the highest award was £265,719 and was made in an exceptional disability discrimination case. This award, however, is substantially higher than the overall average award in disability discrimination claims, which in 2019/2020 was £27,043.
What are the bands for claims presented between 6 April 2021 and 5 April 2022?
The current Vento bands are as follows:
- Lower band: £900 – £9,100
- Middle band: £9,100 – £27,400
- Upper band: £27,400 – £45,600
What will the bands for claims presented after 6 April 2022 be?
Where a claimant presents a claim after 6 April 2022, the relevant Vento bands will be:
- Lower band: £990 – £9,900
- Middle band: £9,900 – £29,600
- Upper band: £29,600 – £49,300
As set out above, the most exceptional cases are capable of exceeding £49,300.
What other factors will the Tribunal consider?
An Employment Tribunal will consider a range of factors when determining the amount of compensation to be awarded. The Tribunal’s focus will be on the effect that the prohibited treatment had on the claimant and relevant factors may include:
- The claimant’s personal characteristics and how they reacted to the prohibited treatment.
- The vulnerability of the claimant.
- Any medical condition with which the claimant suffers.
- The degree of hurt, distress or upset caused.
- The position and seniority of the person who was found to be committing the prohibited act.
- The seriousness of the treatment.
- The manner in which any grievance brought by the claimant was dealt with.
What can employers take from this?
The changes are relatively minor and are intended to reflect inflation. As such, in practice, employers are unlikely to notice the increase.
With that being said, it is important for employers to be aware that even where an employee suffers no financial loss, they may still be able to claim significant compensation for injury to feelings if they have grounds to bring a discrimination, whistleblowing detriment or trade union membership claim.
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