Case ref: 5.5/ May 2005
Summary of Case
Our member Ms T worked for a Civil Service Department. She complained to her employer that she had encountered sex and race discrimination following actions of colleagues in the workplace. Her complaints were investigated.
The report from the investigation said there was no evidence of discrimination but there were some "management issues" which needed consideration.
Advice was sought on likely prospects of success with an ET application on the grounds of sex and race discrimination. Thompsons were also asked to advise on the level of compensation likely to be awarded if any claim was successful.
Key advice provided by Thompsons
Although Thompsons advised that in this particular case the prospects of success were not good, the solicitor set out the general principles which ET's rely on when considering injury to feelings awards. The solicitor said:
"In terms of injury to feelings the general principles governing such awards are as follows:-
1. Awards for injury to feelings are compensatory, they are not punitive. Therefore, the Applicant should be compensated adequately, but the Respondents should not be punished. Feelings of indignation at the Respondent's conduct should not be allowed to inflate the award.
2. Awards should not be too low, as that would diminish respect for the policy of anti-discriminatory legislation. On the other hand, awards should be restrained, as excessive awards could be seen as a way to untaxed riches.
3. Awards should bear some broad similarity to the range of awards in personal injury cases.
4. In exercising its discretion in assessing the sum, the Tribunal should remind itself of the value of everyday life of the sum they have in mind. This may be done by reference of purchasing power or reference to earnings.
5. Tribunals should bear in mind a need for public respect of the level of awards made.
"It is important to remember that the award of damages is essentially a subjective exercise, which depends on the actual suffering of the Applicant, and not the objective nature of the acts of discrimination. However, you should bear in mind that in reality the nature of discrimination does sway Tribunals and they will look at awards made in other cases and are bound by any guidance from the higher courts.
"The Court of Appeal in the case of Vento -v- Chief Constable of West Yorkshire Police, has given guidance on the assessment of damages in discrimination cases. I attach a summary of the decision. The judges stated that damages for injury to feelings can be divided into three bands:-
a) The top band should normally be between £15,000 and £25,000 and that sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment.
b) The middle band of between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.
c) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence."
In Ms T's case the employment tribunal noted she had been put through "four traumatic years" of bullying, leading to clinical depression. The Tribunal had awarded her £50,000.00 for injury to feelings and this was reduced by the Court of Appeal to £18,000."
Legal department comment
The "Vento" guidelines highlighted above are the benchmark against which injury to feelings awards are assessed. It should be noted that the guidelines cover a range of discrimination claims including sex, race and disability. The guidance should also be used in any regulations around potential settlement of any claims