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. [Summary not yet checked against the judgment.]
“even where exemplary or punitive damages are not sought, nevertheless compensatory damages may and in some instances should include an element of aggravated damages where, for example, the defendant may have behaved in a highhanded, malicious, insulting or oppressive manner in committing the act of discrimination”May LJ
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; injury to feelings; principles. Awards for injury to feelings are compensatory, not punitive: an award must be sufficient to mark the gravity of the discriminatory act, but not so high as to be extravagant nor so low as to be derisory, and the tribunal must look at all the circumstances to assess a fair and reasonable sum, bearing in mind the value of the award in everyday life. Reported as Armitage, Marsden and HM Prison Service v Johnson; the principles were later absorbed into the Vento band framework. [Summary not yet checked against the judgment.]
“We consider that, as a matter of principle, aggravated damages ought to be available to plaintiffs or applicants for the statutory torts of sex and race discrimination. … We are satisfied that aggravated damages are available in discrimination cases.”Smith J
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; aggravated damages; psychiatric injury. The EAT (Mr Recorder Underhill QC) held that aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act on the claimant: they form part of the compensatory award and are not a separate punitive award. The Prison Service's treatment of the harassment as trivial, including postponing disciplinary action against the perpetrator until after the proceedings, was a sufficient basis for the award. Where sums are awarded for both psychiatric injury and injury to feelings the tribunal must make clear which is attributable to which, to avoid double counting. [Summary not yet checked against the judgment.]
“aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings: in other words, they form part of the compensatory award and do not constitute a separate, punitive award.”Mr Recorder Underhill QC
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; injury to feelings; established the three 'Vento bands' for compensation. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; aggravated damages; conduct of proceedings. The EAT confirmed for the first time that aggravated damages are available for the manner in which a respondent conducts tribunal proceedings. It upheld an award of £7,500 in a discrimination claim against a firm of solicitors where the tribunal found the employer's solicitors had put a 'monumental amount of effort' into defending the proceedings to an 'inappropriate' extent, the defence being 'deliberately designed to be intimidatory and cause the maximum unease and distress to the claimant'. A costs order was not the only proper response: costs reflect expense reasonably incurred, not the victim's feelings; the tribunal that heard the case is better placed to compensate the claimant than a fresh victimisation claim would be. The EAT stressed that this was no 'green light': cases where misconduct of proceedings attracts aggravated damages will be few and far between. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. [Summary not yet checked against the judgment.]
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. [Summary not yet checked against the judgment.]
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. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. [Summary not yet checked against the judgment.]
“Tribunals should always bear in mind that the ultimate question is “what additional distress was caused to this particular claimant, in the particular circumstances of this case, by the aggravating feature(s) in question?”, even if in practice the approach to fixing compensation for that distress has to be to some extent “arbitrary or conventional”.”Underhill J (President), at [24]
Remedies; injury to feelings; the correct focus. The EAT held that in assessing injury to feelings the tribunal must look to the actual injury suffered by the claimant, not to the gravity of the respondent's acts. Two claimants subjected to identical treatment may properly receive different awards, because the award compensates the hurt rather than marking the wrong. Applied in Komeng v Creative Support Ltd UKEAT/0275/18, where a claimant discriminated against over several years recovered near the top of the lower Vento band because he had shown remarkable resilience. The necessary corrective to a schedule of loss that pitches a band from the conduct alone. [Summary not yet checked against the judgment.]
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.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. The appeal also raised the placing of the injury to feelings award in the lower rather than the middle Vento band. HHJ Stacey held there was no error: the tribunal had correctly directed itself, per Cadogan Hotel Partners Ltd v Ozog UKEAT/0001/14 and Essa v Laing Ltd, to the effect of the treatment on the claimant rather than the gravity of the respondent's acts, and there is no rule confining the lower band to one-off acts. The claimant had shown remarkable resilience over several years of discrimination and recovered near the top of the lower band. The EAT also applied the Simmons v Castle uplift, substituting a total of GBP 12,757. [Summary not yet checked against the judgment.]
Remedies; injury to feelings; aggravated damages; personal injury; ACAS uplift; double counting. The ET upheld a complaint of racial harassment in the fact and manner of the claimant's dismissal after three months' employment and awarded £16,000 for injury to feelings in the middle Vento band, £5,000 aggravated damages and £3,000 for personal injury: £24,000 for non-pecuniary loss, plus interest [9]-[14]. It then applied a 25% uplift under s.207A TULRCA 1992 for the failure to respond to the grievance and appeal, £6,880: 25% of the whole of that award, personal injury included, together with interest of £3,520 [14]-[15]. On the employer's remedy appeal the EAT (HHJ Eady QC) held that a one-off act is not confined to the lower Vento band: the question is always the particular effect on the individual claimant [36]. The ET was plainly entitled to make the uplift, which was not appealed [47]. But the failure to respond to the grievance had also been one of four factors behind the aggravated damages award, and that double counting was relevant to the overall award for non-pecuniary loss [47]-[48]. Aggravated damages were reduced by £1,000 to £4,000, with interest and the uplift to be recalculated on the reduced figure [55]-[56]. Liability went separately to the EAT (HHJ Stacey, 31 August 2018) and then to the Court of Appeal, which dismissed the employer's appeal on the burden of proof without considering remedy: [2019] EWCA Civ 1648 (Underhill LJ) [3]-[4], [34], [45].
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; aggravated damages; the causation requirement. HHJ Tayler (Deputy President) remitted an award of £5,000 aggravated damages, made alongside £25,000 for injury to feelings, because the tribunal had not identified an additional aggravating factor beyond what the injury to feelings award compensated, had made no finding of increased injury, and had not addressed causation. Treating the respondent's status as a firm of solicitors advising on employment law as the 'most serious aggravating factor' sounded punitive; status could be relevant only through findings that it produced high-handed or oppressive conduct which increased the injury. A single injury to feelings award recording the aggravating features will often be preferable, to avoid double counting. A sick pay shortfall awarded under unfair dismissal without any contractual right was also remitted, for a loss-of-chance assessment split before and after the claimant contracted Covid. Obiter: rule 64 of the ET Procedure Rules 2024 requires payment within 14 days, an appeal is not a stay, and enforcement lies in the county court under s.15 ETA 1996. [Summary not yet checked against the judgment.]
“Aggravated damages are a type of award for injury to feelings and so must compensate for something in addition to that already compensated for by a conventional award for injury to feelings. I shall describe the requirements for aggravated damages as the additional aggravating factor and increased injury. The additional aggravating factor must have caused the increased injury; I shall refer to that as the causation requirement.”HHJ Tayler, at [10]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.