Effect of employer's conduct on claimant is key when calculating injury to feelings award

Komeng v Creative Support Ltd UKEAT/0275/18

Why care?

Employment tribunals refer to so called 'Vento bands', which are reviewed annually, when making injury to feelings awards to claimants in cases of unlawful discrimination by their employers. Broadly, the lower band (£900-£8,800) is for less serious cases, such as an isolated or one-off occurrence and the middle band (£8,800-£26,300) is for serious cases of discrimination. Awards are made in the top band (£26,300-£44,000) for particularly serious cases such as a lengthy campaign of discriminatory harassment.

The tribunal must focus on the effect the discriminatory act has had on the particular claimant rather than making a punitive award against the employer for its actions. Factors it takes into account can include how an employer dealt with any relevant grievance, the severity of the claimant's reaction to the discrimination, any medical conditions they have or whether they have subsequently been affected by loss of confidence, panic attacks or stress.

The case

While Mr Komeng was employed by Creative Support Ltd (CSL) he had requested to be enrolled on an NVQ course to develop his career and have some flexibility with weekend shifts. While both his requests were refused other employees of a different race had been enrolled on such courses and were allowed more flexibility with weekend shifts. Mr Komeng succeeded in an employment tribunal claim for direct race discrimination. The tribunal found that he had suffered significant upset and distress working with colleagues with less continuous service, who had the higher qualification and more flexibility over weekend work. It also noted that he had continued to aspire to obtain better qualifications for several years whilst receiving no support. The tribunal decided to award him injury to feelings compensation near the top of the lower band and assessed this as £8,400.

Mr Komeng appealed to the Employment Appeal Tribunal (EAT), arguing that given the seriousness of CSL's actions he should have received a higher award. The EAT disagreed. The tribunal had heard the evidence and there had been no error of law in its approach to assessing injury to feelings in the lower Vento band. Mr Komeng had not provided evidence that he had been adversely affected by the discrimination and indeed had displayed remarkable resilience. It confirmed that it is the impact of the act on the particular claimant that is to be assessed, rather than the gravity of the employer's acts of discrimination. In addition, awards made in the lower Vento band are not limited to one-off incidents of discrimination.

However, the EAT did find that the tribunal had failed to calculate either the interest on Mr Komeng's award or a general damages uplift due in such cases. With the parties’ consent, the EAT substituted the figure awarded by the tribunal with the correct amount of £12,757.

What to take away

When considering the Vento bands of injury to feeling awards, either in the context of an employment tribunal case or perhaps during settlement negotiations, the effect of the unlawful discrimination on an employee is key, rather than the gravity of the employer's actions. Where unlawful treatment causes a claimant more ill effect then a higher award is more likely to be made even where there is perhaps just a one off act rather than a course of conduct. However a detailed assessment of the particular facts will be required on a case by case basis.