Injury to feelings
The Equality Act 2010 provides for payment of compensation for injury to feelings in respect of all discrimination claims except equal pay claims. Thus injury to feelings may be awarded in cases of direct and indirect discrimination, harassment and victimisation. An injury to feelings award is intended to compensate the claimant for the hurt arising from the prohibited conduct. It is a non-pecuniary award that has no reference to any financial loss, so may be awarded whether or not the claimant has sustained any financial loss as a result of the unlawful conduct. In some cases the injury to feelings award will form a major part of the compensation.
In one of the leading cases on injury to feelings, Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 CA (decided under the now repealed Sex Discrimination Act 1975), the Court of Appeal said that, when considering an award for injury to feelings, tribunals should have regard to the following principles summarised by the Employment Appeal Tribunal (EAT) in a case decided under the now repealed Race Relations Act 1976, Armitage, Marsden and HM Prison Service v Johnson [1997] IRLR 162 EAT:
• Awards for injury to feelings are compensatory, not punitive. Feelings of indignation at the conduct of the person inflicting the injury should not be allowed to inflate the award.
• Awards should not be so low as to diminish respect for anti-discrimination legislation, but neither should they be excessive.
• Awards should bear some broad general similarity to the range of awards in personal injury cases.
• In assessing a sum, the tribunal should have regard to the value in everyday life of the sum it has in mind.
• Tribunals should bear in mind the need for public respect for the level of awards made.
The variations in the amounts awarded for injury to feelings are a cause for concern, as it is difficult to assess the possible cost to an employer if it is found to have discriminated.
Factors that will generally be taken into account in calculating the award include the following:
• The vulnerability of the claimant: An inexperienced, younger worker will be seen as more vulnerable and likely to be affected to a greater extent than an experienced, older worker.
• The loss caused to the claimant: A worker who has gained a senior position in his or her particular line of work will usually have lost more through the act of unlawful discrimination. For example, in Kelly v Centuryan Security Services Ltd [2000] ET/2300037/99 (decided under the now repealed Sex Discrimination Act 1975), the claimant had been employed for only a few months, but because she had achieved a position in the industry where her earnings were more than double average female earnings compensation for injury to feelings was awarded in the sum of £10,000.
• The position of the person discriminating: If the unlawful action is taken by the claimant's manager the injury to feelings is likely to be more serious than if it is taken by another individual.
• The duration of the unlawful treatment: A worker subjected to a longer period of discrimination is likely to have been more seriously affected.
• The nature/seriousness of the treatment itself: If the treatment was particularly offensive then a high award may be appropriate even where the treatment has not lasted for a prolonged period.
Claimants who successfully claim discrimination are entitled to be compensated for any injury to health or injury to feelings caused by the act complained of, even if they were unaware that the act complained of was discriminatory (Taylor v XLN Telecom Ltd and others [2010] IRLR 499 EAT - decided under the now repealed Race Relations Act 1976).
Where an individual receives a payment for injury to feelings on the termination of employment, the payment may be subject to income tax. In Moorthy v Commissioners for HM Revenue and Customs [2016] IRLR 258 UT, the Upper Tribunal (Tax and Chancery Chamber) held that compensation for injury to feelings in the context of a discrimination claim does not constitute a payment or benefit "on account of injury … to an employee" within the meaning of s.406(b) of the Income Tax (Earnings and Pensions) Act 2003. The Upper Tribunal held that the term "injury" in s.406 refers to a medical condition and does not include injury to feelings.
Where different forms of discrimination arise out of the same facts, the tribunal need not separate out the types of discrimination, and a single injury to feelings award is justified. However, where there are specific acts that fall into one category of discrimination, but not another, injury to feelings in respect of these acts should be assessed separately Al Jumard v Clywd Leisure Ltd and others [2008] IRLR 345 EAT - decided under the now repealed Race Relations Act 1976 and Disability Discrimination Act 1995).
In Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 CA, the Court of Appeal gave guidance on awards for injury to feelings. It set out three broad bands of compensation (although these bands have now been increased to reflect inflation, see below). The top band, normally £15,000-25,000, should apply to only the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in very exceptional cases should awards exceed £25,000. The middle band, £5,000-15,000, should be used for serious cases that do not merit an award in the highest band. The lower band, £500-5,000, should be used for less serious cases, such as where the act of discrimination is an isolated occurrence. The Court of Appeal said that, in general, awards of less than £500 should be avoided, as they risk being regarded as so low as not to be a proper recognition of injury to feelings. It said that tribunals have considerable flexibility within these bands to fix what they consider in the particular circumstances of each case to be fair, reasonable and just compensation. If awards are also made for aggravated damages and/or psychiatric damage, regard should be had to the overall magnitude of the total of these awards for non-pecuniary loss and double recovery should be avoided by taking account of the overlap between the individual heads of damage.
In a case decided under the now repealed Disability Discrimination Act 1995, Da'Bell v NSPCC [2010] IRLR 19 EAT, the EAT held that the three bands of compensation for injury to feelings awards originally set out in Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 CA should be increased to reflect inflation. The limit on the top band should be increased to £30,000; the limit on the middle band increased to £18,000; and the limit on the lower band increased to £6,000.
There are conflicting EAT decisions as to whether or not these bands are now subject to a further 10% uplift. In Cadogan Hotel Partners Ltd v Ozog EAT/001/14, the EAT held that for "those cases in which an injury to feelings award was made after 1 April 2013 … there is a requirement to apply the 10% uplift laid down in Simmons v Castle [2012] EWCA Civ 1039 CA" (a personal injury case in which the Court of Appeal noted that the judiciary would apply the 10% increase in damages, which formed part of a package of civil litigation reforms). In Simmons, the Court of Appeal stated that "the increase in general damages we are laying down here extends to … general damages in all tort cases", which includes discrimination claims. The same point was also underlined in The Sash Window Workshop Ltd and another v King [2015] IRLR 348 EAT. However, in Chawla v Hewlett Packard Ltd EAT/0280/13 and EAT/0427/13, the EAT contradicted Cadogan Hotel Partners Ltd and The Sash Window Workshop Ltd and another by saying that the 10% uplift on general damages in civil claims ordered by the Court of Appeal does not apply to compensation for injury to feelings caused by discrimination. Similarly, in Pereira de Souza v Vinci Construction UK Ltd [2015] IRLR 536 EAT, the EAT declined to follow the decisions in The Sash Window Workshop Ltd and Cadogan Hotel Partners Ltd v Ozog EAT/001/14, and held that the 10% uplift to general damages that applies in the civil court does not apply to employment tribunal awards. However, in Beckford v London Borough of Southwark [2016] IRLR 178 EAT, the EAT endorsed the approach taken in Simmons and cast doubt on the correctness of the decision in Pereira de Souza.
The EAT decision in Pereira de Souza is being appealed and the Court of Appeal is due to hear the appeal on 23 May 2017. It is hoped that the Court of Appeal will clarify the position regarding the 10% uplift.
In practice, injury to feelings awards have varied a great deal. Tribunals now routinely refer to Vento in making their awards, but it can still be difficult to predict the award that a tribunal may make. The EAT will be cautious about interfering with a tribunal's award, but will do so if it considers that the award is outside the range that a reasonable tribunal would have made. In HM Land Registry v McGlue EAT/0435/11, the EAT provided guidance on remedies for discrimination claims, including injury to feelings awards.
In Carney v Rouf and another [2005] All ER (D) 127 (Jan) EAT (decided under the now repealed Sex Discrimination Act 1975), the EAT increased an injury to feelings award from £1,500 to £8,500 where a barmaid at a restaurant had been subjected to persistent sexual harassment over three months by one of the owners of the business and the head chef. The EAT considered the circumstances to be far beyond the lower bracket in Vento.
In AA Solicitors Ltd trading as AA Solicitors and another v Majid EAT/0217/15, the EAT upheld an injury to feelings award of £14,000 in respect of allegations of "40 or more acts of sexual harassment … ranging from asking [the employee] to go out to the cinema, talking about installing a bed in one of the rooms at the office, attempting to hug her, touching her arms, squeezing and rubbing her hands when shaking hands and making her feel uncomfortable by these types of act". The EAT stated that the award was in the correct Vento band and, although perhaps on the high side, it was not manifestly excessive.
In a case decided under the now repealed Race Relations Act 1976, ICTS (UK) Ltd v Tchoula [2000] IRLR 643 EAT, the EAT said that global awards were more appropriate than an award being made for each separate act of discrimination.
Armitage, Marsden and HM Prison Service v Johnson [1997] IRLR 162 EAT is an example of an award made under the now repealed Race Relations Act 1976 in the top band. The claimant had been subjected to an 18-month campaign of appalling treatment on racial grounds and received £21,000 for injury to feelings. Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 CA (decided under the now repealed Sex Discrimination Act 1975) is a further example of an award in the top band. In this case a woman was not confirmed in post at the end of her probationary period as a police constable, and put through "four traumatic years by the conduct of the respondent's officers", leading to clinical depression and adjustment disorder, which lasted for three years. An award for injury to feelings of £50,000 plus £15,000 for aggravated damages and £9,000 for injury to health was made by an employment tribunal. The EAT substituted an award of £25,000 for injury to feelings and £5,000 for aggravated damages. The Court of Appeal then decided that the award of £74,000 made by the employment tribunal for injury to feelings, aggravated damages and personal injury was clearly excessive. It ruled that a fair award was £32,000, made up of £18,000 for injury to feelings, £5,000 for aggravated damages and £9,000 for personal injury caused by psychiatric damage. In Virdi v The Commissioner of Police of the Metropolis [2000] ET/2202774/98 (decided under the now repealed Race Relations Act 1976), an Asian police officer, having successfully claimed unlawful racial discrimination, was awarded £100,000 for injury to feelings and a further £25,000 in respect of aggravated damages. However, the EAT in Chief Constable of West Yorkshire Police v Vento (No.2) [2002] IRLR 177 EAT commented that Virdi was "a wholly exceptional case".
In Gilbank v Miles [2006] IRLR 538 CA (decided under the now repealed Sex Discrimination Act 1975), the Court of Appeal upheld an award of £25,000 that was made jointly and severally against the limited company and a director and shareholder (Ms Miles), as she had consciously fostered and encouraged a discriminatory culture that targeted the claimant, a pregnant employee. The EAT said that the respondent had demonstrated a total lack of concern for the claimant's welfare and a callow disregard for the life of an unborn child. In Michalak v Mid Yorkshire Hospitals NHS Trust ET/1810815/08 (decided under the repealed Sex Discrimination Act 1975 and repealed Race Relations Act 1976), the employment tribunal found the NHS Trust and three of its senior managers, including the human resources director, jointly and severally liable for race and sex discrimination.
In St Andrews Catholic Primary School and others v Blundell EAT/0330/09 (decided under the now repealed Sex Discrimination Act 1975), the EAT held that an award of £22,000 for injury to feelings in respect of victimisation that the tribunal had found was akin to "a campaign of discriminatory harassment" was too high. The EAT found that, had it properly considered the appropriate "benchmark" cases, the tribunal could not have concluded that the case, serious though it was, fell into the top Vento band. It substituted a figure of £14,000.
Examples of awards in the lower band include Fhima v Travel Jigsaw ET/2401978/14, in which the employment tribunal awarded the claimant £5,000 for a "one off act" of indirect religious discrimination which had "little emotional impact on the claimant as a result", and the following cases, all decided under the now repealed Sex Discrimination Act 1975: £500 in Hatherley v Bounty Services Ltd [1998] ET/1701750/97, a recruitment case in which men were excluded from the position of baby photographer in a maternity unit; £750 in Jones v Chief Constable of Northamptonshire Police [1999] ET/1201171/98 where the respondent refused to consider applications from men for a temporary post in an all-male section; £1,000 in Hannah v Motorola [1998] ET/1200787/98 for a woman frequently called "young lady" by her manager.
There have, in the past, been many instances of awards of less than £1,000. However, Doshoki v Draeger Ltd [2002] IRLR 340 EAT suggested that awards for injury to feelings should now be no lower than about £750. In this case, the EAT increased an award made under the now repealed Race Relations Act 1976 from £750 to £4000 where the claimant had suffered repeated and hurtful racial taunts over four months. It said that the case fell in the lower category of case but could not properly be regarded as falling at the bottom or very close to the bottom of the scale of awards for injury to feelings. However, the case was to be distinguished from the more serious kind of case where the claimant's employment is threatened or terminated by reason of the discriminatory acts against him or her.
In London Borough of Hackney v Sivanandan and others [2011] IRLR 740 EAT, the EAT held that, where there are multiple respondents and particular loss cannot be attributed to one party, employment tribunals must award compensation on a joint and several liability basis, meaning that the claimant can claim the entire amount from any respondent. It is only where there is a rational basis to differentiate between the loss caused by each respondent that a tribunal has the power to apportion compensation between them. If, in the case of jointly and severally liable respondents, only one is called upon to satisfy the award in full it is possible for it to seek a contribution from one or more of the other respondents by means of the Civil Liability (Contribution) Act 1978.