Employee Compensation for Injury to Feelings – Legal developments on how much can be claimed

Posted on September 6, 2017

If an employee is successful in a discrimination claim against their employer (or former employer) they can recover compensation for their injured feelings as well as for financial losses.  Awards for injury to feelings can even be made in cases where an employee has suffered no financial loss, and are designed to compensate the individual rather than punish the employer.  Factors to be considered by the Tribunal include the vulnerability of the Claimant, the degree of distress suffered, and the seriousness of the treatment. The concept of “injury” is not a medical one, and claimants do not need to show medical evidence of their injury to feelings or distress (although they can do so if on the facts it might help their claim).

Calculating how much will be awarded in any given case is not a precise science, although some years ago in 2002 the Court of Appeal set guidelines on the amount of compensation to be given for injury to feelings.  This provided three bands – known as the “Vento bands”, which have subsequently been applied by tribunals, subject to inflationary rises. These comprise a lower band for less serious cases (such as a one-off incident or isolated event), a middle band for serious cases which do not merit an award in the highest band, and an upper band for the most serious cases (for example where there has been a lengthy campaign of harassment).

Since 2013, following the case of Simmons v Castle [2012] EWCA Civ 1039, a 10% uplift has been applied in the civil courts for this type of non-pecuniary damage. This uplift was brought in as a quid pro quo for the abolition of the right of successful claimants funding litigation under Conditional Fee Arrangements (commonly referred to as no win no fee arrangements) or via the use of After the Event Insurance to recover from defendants the success fee they are required to pay or the cost of the insurance premiums they have bought.   The uplift came to be known as the Simmons v Castle uplift, and it was the subject of debate as to whether this uplift applied in the employment tribunal as well as in the civil courts. In the recent significant case of De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879 the Court of Appeal confirmed that the 10% uplift does apply in employment tribunals.

In response to the Court of Appeal’s recent decision, the President of the Employment Tribunals (England and Wales) and the President of the Employment Tribunals (Scotland) have issued new guidance on injury to feelings to take account of inflation  and the 10% Simmons v Castle uplift.  The revised bands, which apply to claims presented on or after 11 September 2017, will be

Lower band: £800 – £8,400

Middle band: £8,400 – £25,200

Upper band: £25,200 – £42,000

Only exceptional cases will warrant higher awards.  These bands will be reviewed annually.

Employers will see that awards to injury to feelings can be significant. Ensuring you remain compliant with discrimination laws is important, as it would be rare for a Tribunal not to award compensation for injury to feelings if it finds there has been discrimination.

At Julian Taylor Solicitors we commonly advise on the bringing and defending of discrimination claims, as well as guide employers on how to manage their exposure to claims. Do get in touch if you think we can help.