Discrimination: injury to feeling awards and how to avoid them

In discrimination claims, successful claimants are entitled to potentially uncapped compensation, which is where the big numbers you sometimes see in newspaper headlines come from ("Top woman doctor's record £4.5m payout for five-year campaign of harassment", "City boss sues for £1m over claims of 'unrelenting homophobic abuse", etc).

Compensation for discrimination will predominantly be for financial loss, such as loss of earnings. However, there is also a head of loss known as 'injury to feelings'. This is aimed at compensating individuals for the upset, hurt and distress the discrimination has caused them – there is no need for a claimant to prove they suffered medical injury. Instead the Tribunal has discretion to consider wide-ranging factors, such as how the respondent handled any complaints, the seriousness of the complaints and whether the claimant suffered anything like panic attacks or loss of confidence as a result etc.

It is understandably quite hard for a Tribunal to attribute a financial value to someone's feelings and to help with this Tribunals should follow guidelines set by the Court of Appeal in the 2002 case of Vento (known as the 'Vento bands'). The Vento bands have been subject to much discussion and case law on the extent to which they should be increased in line with inflation. Last week, the Presidents of the Employment Tribunal confirmed that the bands should be increased to the following:
· Lower band (for the least serious cases, e.g. one off or isolated incidents) – £800 - £8,400
· Middle band (for serious cases that do not merit an award in the highest bad) – £8,400 - £25,200
· Top band (for the most serious cases, such as where there has been a lengthy campaign of discrimination) – £25,200 - £42,000

For the first time, a new 'fourth band' also appears to have been created, with the recognition that awards of over £42,000 may be made in the most "exceptional" cases.

The new bands will apply to any claims issued on or after 11 September 2017. The bands will be reviewed in March 2018 and from then on annually.

Why does this matter?

Hopefully you will not ever find yourself facing a discrimination claim, let alone an injury to feelings award against you. However, this does not mean you should just delete this blog from your inbox and your memory. That's because discrimination is something that needs to be tackled proactively. Quite apart from the moral and cultural implications, this is sensible both to reduce the risk of discrimination allegations arising in the first place (and the angst and hard work associated with that), but also because an employer potentially has a statutory defence to discrimination claims if it can show it took "all reasonable steps" to prevent its employees committing discrimination.

So why not use the increase to the Vento bands as a helpful prompt to check that you're doing enough to try to avoid discrimination in your workplace. "Reasonable steps" will usually include:

• Having an equal opportunities policy and an anti-harassment and bullying policy.
• Actively implementing those policies – it's not enough just to be able to point to the existence of a policy document, all employees need to be made aware of their contents and implications. Consider giving staff training on what appropriate behaviour looks like.
• Training for managers and supervisors on how to tackle discrimination issues if they arise.
• Having a clear procedure for handling complaints and ensuring that it is followed, including taking disciplinary action where appropriate.

Remember, prevention is after all always better than cure.