Injured feelings - Goldenleaver
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An Employment Tribunal can award an injury to feelings award in successful discrimination cases. An injury to feelings award is a similar style award to a general damages award recovered in a personal injury case. The award is not linked to a claimant’s actual financial loss and therefore an employee can recover compensation for injured feelings when there has been no loss at all. This is an interesting case as it reaffirms that the award is not intended to be punitive but compensatory and that injury to feelings awards are subject to a 10% uplift following the Court of Appeal’s decision in Simmons v Castle (a personal injury claim). 

Compensation not punitive

The injury to feelings awards range from £660 to £33,000 and are broken down into bands called Vento bands (£660 – £6,600 (lower Vento band) £6,600 to £19,800 (middle Vento band) £19,800 to £33,000 (higher Vento band). The level of the award depends on a number of factors. Some examples of the factors which tribunals have taken into account are:

  • Personal characteristics. If a claimant reacted to the discrimination more severely than others, then this should be accounted for regardless of whether the discrimination could be viewed “objectively” as less serious.

  • Any medical condition from which the claimant is suffering.

  • Factors such as panic attacks, stress, loss of confidence and interference with personal relationships.

  • The nature of the claimant’s job.

  • The manner in which the respondent dealt with any grievance brought by the claimant.

In this case, the Employment Appeal Tribunal heard an appeal against an Employment Tribunal’s award in the middle band for injury to feelings, which it held was not justified by the tribunal’s findings of fact. The case involves hotel workers at the Cadogan Hotel in London and the male worker’s behaviour included touching and kissing a female employee on the arms and back and undoing his trousers and belt and saying “Do you want this body? Come on you are a woman. You should want this body”.

The tribunal found that touching and kissing was a mild form of sexual harassment which made her feel uncomfortable and the belt incident was direct sex discrimination and harassment which made the employee very uncomfortable. The tribunal was critical of the hotel failing to investigate the complaints or take them seriously and concluded that an award in the middle Vento band was appropriate, in this case £10,000.

However, the EAT found that the tribunal had focused on its own view of the respondent’s conduct in making the award of £10,000, rather than looking at the effect it had actually had on the claimant, which had never gone beyond making her feel “very uncomfortable”. The EAT found that this could only be classified in the lower band, and so substituted an award of £6,000 and then uplifted it by 10% to £6,600.

10% uplift

In a case called Simmons, the Court of Appeal held that the level of general damages in certain types of claims should be increased by 10% after 1 April 2013 to reflect the fact that claimants will no longer be able to recover success fees and “after the event (ATE)” insurance premiums from their opponents owing to the Legal Aid, Sentencing and Punishment of Offends Act 2012.

As compensation for injury to feelings in discrimination cases is assessed in the same way as any other claim in tort, claimants should be able to argue that their award be increased by 10%.

As the reason behind the 10% uplift is because success fees are no longer recoverable, it was unclear as to whether this would apply to claims in the employment tribunal, as costs are seldom recovered. Guidance produced by the President of the Employment Tribunals in England and Wales earlier this year made it clear that the 10% uplift would be applied to injury to feelings award but this is the first case we have heard of it where it has been expressly applied.

Caroline Leaver