Injury to Feelings in Race Discrimination Claims
Friday 31st May 2019
In Base Childrenswear Ltd v Otshudi the EAT held that when a Tribunal makes an award for injury to feelings as a result of a one off act of discrimination, such awards are not limited to the lowest ‘Vento band’.
When making a claim for unlawful discrimination , Claimants are able to make claims for injury to feelings. This head of claim compensates for the hurt and upset of the Claimant has suffered as a result of the discriminatory act or acts. This award is considered separately from any other claim for financial losses, such as loss of earnings.
In deciding the value of such an award, the Tribunal will consider which of the three Vento bands (named after the Court of Appeal case of Vento v The Chief Constable of West Yorkshire Police in which they were first identified) the discrimination falls into;
- Lower Band for the least serious cases in which awards between £900 to £8,800 can be made.
- Middle Band used for serious causes which do not merit an award under the top band, for which awards of £8,800 to £26,300 can be made.
- Top Band for the most serious cases in exceptional circumstances, awards under this band range between £26,300 and £44,000.
The Claimant was dismissed by the Respondent after three months of employment. The first instance Tribunal heard that the Claimant had complained of six acts of racial harassment whilst employed and a further act relating to her dismissal. They held that whilst the previous six were out of time and thus dismissed, the final instance of racial harassment was well founded and in time. An award in middle bracket of Vento, at £16,000, was made in respect of injury to feelings.
The Respondent appealed to the EAT on a number of grounds, one of which was that a one off act of discrimination could not attract an award outside of the lower Vento band.
Decision and Comment
The EAT rejected the appeal and held that an award above that of the lower band could be made even for one-off acts of racial harassment.
This case reinforces that whether or not discriminatory conduct is a one off act or a number of acts over a period of time the award made by the Tribunal will depend on the particular effect of the act or acts on the individual complainant. Vento bands are not prescriptive and any award for injury to feelings made by the Tribunal will depend on the facts of the matter at hand.