by Laurie Anstis on August 18, 2011
Section 124 of the Equality Act 2010 governs the amount of compensation that can be awarded by an employment tribunal in a successful discrimination claim.
This in turn refers to section 119, which provides that:
An award of damages may include compensation for injured feelings.
This is a departure from the usual employment tribunal compensation rules, which normally only permit compensation for financial loss, not compensation for hurt feelings.
Awards of compensation for unlawful discrimination will invariably include compensation for injury to feelings, but for a long time there was uncertainty about how such awards should be calculated.
In the case of Vento -v- Chief Constable of West Yorkshire Police  EWCA Civ 1871, Lord Justice Mummery set out guidance for employment tribunals on how to make such awards (at paragraph 65 of the judgment):
Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.
i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race … Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
ii) 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.
iii) 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 general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.
In Da’Bell -v- NSPCC  UKEAT 0227 the EAT updated the bands to between £18,000 and £30,000 (top), £6,000 to £18,000 (middle) and up to £6,000 (lower).
According to the latest employment tribunal statistics (for the year to March 2010) the median awards for race, sex and disability discrimination claims (which include compensation for financial loss, not just compensation for injury to feelings) were £5,392, £6,275 and £8,553 respectively – suggesting that tribunals assess the majority of cases as falling within the lower Vento band.
[Updated 11 August 2014: it is unusual for the Employment Appeal Tribunal to overturn an employment tribunal’s decision on which band a case falls into, but Cadogan Hotel v Ozog is an example of them moving a case from the middle to lower band.]