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; 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.
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; 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.
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; injury to feelings; aggravated damages; harassment. The Court of Appeal dismissed an appeal against awards of £12,500 for psychiatric injury and £10,000 for injury to feelings under the Protection from Harassment Act 1997, the harassment including racial abuse. There is no hard and fast rule whether psychiatric injury and injury to feelings attract separate awards; it depends on the facts, with the judge guarding against double recovery [18]-[19]. The judge made no separate award of aggravated damages and was right not to: in harassment and discrimination alike, the injury to feelings award should itself reflect the aggravating features of the defendant's conduct as they affected the claimant, aggravated damages being compensatory [20]. Both awards were on the generous side but within range, and generous components do not make the total excessive [22]-[24]. Not authority for a separate aggravated damages award.
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.
The totality principle in quantum. Where a claimant suffers multiple injuries, the court first values each separately by reference to the guidelines, then stands back and asks whether the aggregate is reasonable compensation for the totality of the injury: the total may need increasing to reflect the combined effect on the claimant's life, or reducing to remove double counting. The step-back authority cited throughout the Judicial College Guidelines. In employment remedies the same discipline governs the aggregate of injury to feelings, psychiatric injury and aggravated damages across overlapping claims, read with HM Prison Service v Salmon on the ItF/psychiatric overlap.
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; Vento bands; one-off act. The Court of Appeal upheld a middle-band Vento award of £16,000 for a single act of direct race discrimination, the claimant's dismissal. A one-off act is not confined to the lower band: where the injury to feelings is substantial the tribunal is entitled to place it in the middle band, the question being the effect on the claimant rather than the number of acts. The Vento figures are applied as uprated for inflation under the Presidential Guidance.
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; 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.
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.
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; psychiatric injury; pre-existing condition; aggravated damages; financial penalties. The tribunal upheld claims of failure to make reasonable adjustments, the employer having delayed funding for cognitive behavioural therapy, and of discrimination arising from disability. It awarded £22,000 for psychiatric injury and £19,800 for injury to feelings on the adjustments claim, and almost £9,000 for injury to feelings on the s.15 claim; it declined aggravated damages, the threshold not being met, and found no aggravating features for a penalty under s.12A ETA 1996, there being no deliberate, malicious or negligent behaviour and no repeated breaches. The EAT dismissed both appeals. The tribunal had plainly been aware of the claimant's pre-existing mental illness, which was the very reason she needed the therapy; the respondent had to take her as it found her. The psychiatric injury was caused by the failure to facilitate the therapy [IDS 37.134]. On the penalty, the tribunal was undoubtedly right not to impose one; this remains the only appellate decision on s.12A [IDS 18.208].