Compensation for injury to feelings in discrimination claims, assessed by reference to the Vento bands. Vento v Chief Constable of West Yorkshire Police (No.2); Da'Bell v NSPCC.
Remedies; aggravated damages; discrimination. The Court of Appeal held that aggravated damages may be awarded in discrimination cases where the defendant's conduct is 'high-handed, malicious, insulting or oppressive in committing the act of discrimination'. The award is compensatory, not punitive, designed to reflect the additional injury to feelings caused by the manner of commission. A foundational authority for aggravated damages in employment discrimination.
Remedies; discrimination; compensation in pregnancy dismissal cases; EAT confirmed that awards for injury to feelings are compensatory, not punitive, and provided guidance on calculating career loss and interest, emphasizing the need to avoid double recovery.
Remedies; injury to feelings; an award must be sufficient to mark the gravity of the discriminatory act but not so high as to be extravagant; awards should not be so low as to be derisory; the tribunal must look at all the circumstances to assess a fair and reasonable sum.
Personal injury in discrimination claims; the Court of Appeal confirmed that compensation for personal injury (physical or psychiatric) caused by unlawful discrimination is recoverable as a separate head of loss in tribunal proceedings, provided causation between the discriminatory act and the injury is established.
Discrimination; remedy; injury to feelings awards fall into a higher and a lower band — £27,000 award excessive and reduced; aggravated damages form part of injury to feelings, not a conceptually separate head.
Remedies; injury to feelings; extreme and prolonged harassment justifies an upper Vento band award; tribunals must neither be over-generous nor treat injury to feelings as trivial; an award must be sufficient to mark the gravity of the wrong without being extravagant.
Remedies; injury to feelings; no deductions are to be made from an injury to feelings award for future contingencies or for accelerated receipt; the award compensates for the injury actually sustained, without reduction for the possibility that the claimant might have suffered similar hurt from another source.
Remedies; injury to feelings; established the three 'Vento bands' for compensation.
Remedies; aggravated damages; sexual harassment; employer's response. The EAT upheld an aggravated damages award in a sexual harassment claim against a firm of solicitors. The employer's failure to deal adequately with the complaint, and its subsequent dismissive attitude to the claimant's grievance, were aggravating features that justified an additional award over and above the basic injury-to-feelings sum. A frequently cited authority for post-act employer conduct as a ground for aggravated damages.
Remedies; causation; a claimant must establish a causative link between the discriminatory act and the injury to feelings; distress attributable to other causes is not recoverable; the standard test of causation (but for) applies to the injury to feelings element.
Remedies; aggravated damages; harassment. Court of Appeal case upholding an award of aggravated damages in a harassment claim. The court confirmed the compensatory nature of aggravated damages, affirmed that an employer's conduct in failing to deal adequately with complaints and in adopting a dismissive attitude can constitute an aggravating feature, and endorsed the proposition that such damages are justified where the manner of commission or subsequent conduct has materially worsened the claimant's injury to feelings.
Remedies; injury to feelings; established the methodology for uprating the Vento bands in line with the retail prices index; provides the framework for periodic Presidential Guidance upratings of the lower, middle and upper Vento bands.
Remedies; uplift; established a 10% uplift in general damages (including injury to feelings awards in discrimination claims) to compensate for the loss of success fees.
Remedies; aggravated damages; discrimination. Underhill P confirmed three categories of conduct capable of grounding aggravated damages: (1) particularly upsetting manner of commission; (2) discriminatory motive (spiteful, vindictive or intended to wound); (3) subsequent conduct that adds to the injury, including an employer's hostile response to a complaint or aggressive conduct of litigation. Aggravated damages are a sub-head of injury to feelings, not a separate head; the tribunal must avoid double-counting and must identify the additional harm attributable to the aggravating feature. Awards are compensatory only.
Sex discrimination and harassment; EAT held that while pregnancy/maternity are not directly protected characteristics for harassment under s.26 EqA, comments concerning pregnancy can constitute sex-related harassment because pregnancy is unique to women.
Remedies; injury to feelings; confirmed that the 10% general damages uplift established in Simmons v Castle [2012] EWCA Civ 1288 applies to injury to feelings awards in the Employment Tribunal as well as in the civil courts.
Remedies; injury to feelings; a single act of direct racial harassment (dismissal) can fall in the middle Vento band where the injury to feelings is substantial; a tribunal is entitled to award middle-band injury to feelings compensation for a one-off act.
Remedies; injury to feelings; Vento bands; the EAT identified key factors for band placement: whether the discrimination was overt; whether the claimant was exposed, ridiculed or humiliated; the asymmetry of power; the claimant's own description; duration of consequences; effect on past, present and future working life; and effect on personal life. A procedural omission (missed grievance meeting) causing limited distress fell in the lower band; £2,000 substituted.
Remedies; interest; the EAT ruled that employment tribunals must consider awarding interest on discrimination compensation regardless of whether the parties have applied for it, following the principle in Marshall (No.2) that interest is an essential component of discrimination compensation. Stacey J held it was not correct for the tribunal to rely on the absence of an application to justify not awarding interest.
Aggravated damages; the employment tribunal found that, in the absence of any credible explanation from the Trust for its motives, its 'thorough-going antagonism' towards the claimant's return justified an aggravated damages award; illustrates the role of employer motive in aggravating injury to feelings.
Remedies; injury to feelings; compensation for injury to feelings is designed to compensate the claimant for hurt, humiliation and distress sustained as a result of discrimination, it is not intended to punish the respondent.
Remedies; injury to feelings; racial harassment compounded by a delayed and inadequate grievance response by the employer; the manner in which an employer handles a complaint can affect the level of injury to feelings award.
Remedies; aggravated damages; subsequent conduct. The EAT reinforced the principles in Commissioner of Police v Shaw [2012]: conduct after the discriminatory act, including an employer's failure to investigate a grievance, dismissive attitude to complaints, or aggressive pursuit of litigation, can ground an aggravated damages award where it materially increases the claimant's injury to feelings. The tribunal must distinguish the additional harm attributable to post-act conduct from the basic award and avoid double-counting.
Remedies; aggravated damages; quantum. The EAT provided guidance on the quantification of aggravated damages in discrimination cases: the tribunal must identify the specific features that aggravate the basic injury-to-feelings award, must not double-count, and must assess the additional injury to feelings caused by those features separately from the underlying award.
Remedies; aggravated damages; double-counting. The EAT held that a tribunal awarding both a basic injury-to-feelings sum and an aggravated damages component must carefully identify the additional harm caused by the aggravating conduct and avoid compensating the same harm twice. An aggravated damages award requires a clear causal link between the specified aggravating features and an uplift in the claimant's actual injury over and above what the basic ITF award already reflects.