The price of injured feelings
We highlight changes to the Vento guidelines.
The Equality Act 2010 expressly provides that compensation for discrimination can include (or be fully made up of) an award for injury to feelings. This is a separate award to compensation for financial loss. This means a claimant can recover injury to feelings even where there has been no financial loss.
The leading case on this is Vento v Chief Constable of West Yorkshire Police where guidelines for compensation were set. These are made up of three bands. A lower band (for less serious cases), a middle band (for more serious cases which do not merit an award in the top band) and the top band (for the most serious cases where a lengthy campaign of discriminatory harassment has occurred). The top band should only be applied to the most exceptional cases.
Earlier this month, on 6 April, the Presidents of the Employment Tribunals in England and Wales issued guidance on updating these Vento bands for awards for injury to feelings. This is in line with the Retail Index Price and an uplift from case law.
For claims presented in England and Wales on or after 6 April 2018, the following bands will apply:
• A lower band of £900 to £8,600.
• A middle band of £8,600 to £25,700.
• An upper band of £25,700 to £42,900. In exceptional circumstances, awards can exceed £42,900.
There are a number of factors that are considered when the tribunal determines which band to apply. This includes but are not limited to any medical conditions the claimant suffers from, stress, loss of confidence, the nature of the job and personal characteristics.
For employers facing compensation claims we recommend that you prepare a counter schedule of loss that includes a reasonable assessment of the potential compensatory awards as well as requesting evidence on mitigation including information on all jobs the claimant may want to apply for. Employers should also avoid being deliberately antagonistic as this may lead to an aggravated damages award.