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 can be awarded in a discrimination case where the defendants have behaved 'in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination'. In Commissioner of Police of the Metropolis v Shaw, Underhill P treated this as describing cases where the manner in which the wrong was committed was particularly upsetting. It remains the classic statement of when aggravated damages are available, cited and applied by courts and tribunals ever since. [Summary checked against a practitioner text, not 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 checked against a practitioner text, not 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 checked against a practitioner text, not 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 made clear 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 and thus the injury to feelings. The tribunal had awarded £20,000 for injury to feelings, £5,000 of it as aggravated damages, because the Prison Service's handling suggested it saw the matter as trivial and the perpetrator had not been disciplined swiftly or decisively. The EAT recognised the danger of double counting between psychiatric injury and injury to feelings: the awards are distinct in principle but not easily separable in practice. A tribunal may treat the psychiatric injury as compensated under injury to feelings if it identifies the aspects of the medical condition that award covers. [Summary checked against a practitioner text, not 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 checked against a practitioner text, not 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.”Ward LJ, Mummery LJ, Jonathan Parker LJ, at [65]
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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 checked against a practitioner text, not 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; nature and purpose. Langstaff P summarised the nature and purpose of aggravated damages in discrimination cases. A tribunal must look first at whether, objectively viewed, the conduct is capable of being aggravating, that is aggravating the sense of injustice the individual feels and injuring their feelings still further. It should be cautious not to award under injury to feelings damages for the self-same conduct as it then compensates as aggravated damages. Aggravated damages are compensatory, not punitive, and do not depend on any sense of outrage by the tribunal at the conduct. [Summary checked against a practitioner text, not the judgment.]
Remedies; general damages; the 10% uplift. On approving a settlement, the Court of Appeal declared that from 1 April 2013 general damages for pain, suffering and loss of amenity, nuisance, defamation and all other torts causing suffering, inconvenience or distress would be 10% higher than before [20], for every case in which judgment is given after that date [19]. The increase was an integral part of the Jackson reforms to civil costs enacted in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [7], [15]. This judgment is confined to tort and says nothing of tribunal awards: the court revisited it in [2012] EWCA Civ 1288, and De Souza v Vinci Construction UK Ltd later applied the uplift to awards for injury to feelings.
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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 checked against a practitioner text, not 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 tribunal awarded £10,000, in the Vento middle band, for sexual harassment and direct sex discrimination [7], [20]. It erred twice: it took into account the employer's response to the claimant's complaints, which was not found to be an act of discrimination [46]; and its reasoning focused on the acts of discrimination, not the injury actually suffered [47]. The question is the impact on the employee: the same act may put one employee in the middle band and another in the lower [49]. Awards are compensatory, not a means of punishing employers [50]. Findings that she was made uncomfortable and very uncomfortable justified only the lower band [48]. On the employer's concession the EAT substituted £6,000, plus the 10% Simmons v Castle uplift: £6,600 [51]. The 25% ACAS uplift was quashed: the oral judgment found only oral grievances; the written reasons could not add a finding of a written grievance [54]-[56].
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; injury to feelings; Vento bands. The Interest on Awards in Discrimination Cases Regulations 1996 require a tribunal to consider interest whether or not a party has applied: it was not correct for the tribunal to record the absence of an application in support of awarding none [10]-[11]. Nor could it say that calculation was impossible: a tribunal must do the best it can on the information before it, especially where the respondent's record-keeping caused the difficulty [12]. That was an error of law [13]. Placing injury to feelings near the top of the lower band disclosed no error: the tribunal had directed itself to the actual injury suffered, not the gravity of the respondent's acts [17], and it is not the case that only one-off incidents fall within the lower band [19]. Appeal allowed in part: the EAT substituted GBP 12,757, including an agreed Simmons v Castle uplift of GBP 840 and interest of GBP 3,517 [20]-[22].
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].
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.
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.
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.
“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.