If you have had problems with your employer and haven’t been able to resolve these informally, you might be considering lodging a claim with the Employment Tribunal, and seeking compensation. Litigation can be time-consuming and stressful. Additionally, if you decide to seek professional legal representation it can be expensive too. If you choose to take the case to a tribunal hearing and are successful, one of the most notable remedies a tribunal can give is compensation. Therefore, a key factor that any Claimant will need to consider when deciding whether to commence litigation is how much compensation they are likely to recover should the case be determined in their favour.
On the 8th of December 2022, the government published the latest statistics for damages awards in the Employment Tribunal. The first thing to note is that 52% of all claims submitted, on average in the last 10 years, settle through Acas or are withdrawn, including cases which are settled privately. This is an attractive option because it saves the parties the time and expense of litigating and gives some control over the outcome. Of those that were pursued, only 8% of cases were successful at trial. This is over the same 10-year period, with the remainder of cases being either unsuccessful, struck out, dismissed at a preliminary hearing, or a default judgment granted.
If your claim is successful, the Employment Judge will then assess what compensation you should receive. The damages award for discrimination is referred to as ‘injury to feelings’ and cases are assessed to fall into what lawyers call the ‘Vento bands’. These bands are guideline amounts for less serious, middling, and most serious cases of discrimination. The current guideline awards are £990 to £9,900 (the lower band), £9,900 to £29,600 (the middle band), and £29,600 to £49,300 (the upper band) respectively.
Breaking the claims into the various protected characteristics for discriminatory treatment, the average value of a successful claim over the last 10 years (not accounting for inflation) has ranged between £11,000 and £32,000. This is illustrated in the bar chart below (Chart 1). Please note that Employment Tribunal data groups the protected characteristics of ‘marriage and civil partnership’ and ‘gender reassignment’ under ‘sex’. The data suggest that the average award falls within the middle Vento band.
Chart 1
Separating this further, you will see in Chart 2 there is a reasonably even distribution of outcomes, with some grouping around the £10,000, £15,000, and £20,000 marks. Again, this suggests a tendency to make awards for successful claims in the middle Vento band.
Interestingly, damages are ostensibly limited by the top Vento band, with current guidelines suggesting that the most serious cases of discrimination should receive damages of up to £49,300. It appears that the Employment Tribunal is averaging 15 cases a year above the top band. Awards above the top Vento band are only awarded in the most exceptional cases. Given that the Employment Tribunal receives around 20,000 claims of discrimination per year, this suggests that less than 1% of successful claims are deemed exceptional.
It is essential to recognise that the following, Chart 2, shows the total number of successful cases over the last 10 years, and does not indicate the likelihood of success for each type of claim which would require the number of each type of claim submitted.
Chart 2
How many claims are brought under each protected characteristic? In Chart 3 we see the total number of claims made under each category (2021/22 data is not yet available). What is notable is that only a relatively small number of claims are brought for religion / belief discrimination, despite a lot of media attention recently for claims under this category. Very few sexual orientation claims are brought, in contrast to a reliably high number of disability claims.
The fact that religion / belief and sexual orientation discrimination claims are so low could be for any number of reasons, which is outside the scope of this blog, but might have to do with the number of people who are LGBT or actively religious compared with the number of people that form the other categories. It could also suggest a greater acceptance of individuals in these groups, or that for some reason individuals who have been discriminated against for these reasons are reluctant to bring Employment Tribunal claims.
This data does take into account multiple claim cases, where many workers bring claims together against the same organisation, so specific group claims can make some years look unusual. We have included an average of the displayed years for reference, which places sex discrimination as the most common claim during this period.
Chart 3
Ultimately, each case will turn on its own facts. However, if you are a Claimant, the data on damages should provide some insight as to what the range of outcomes could be. Assessing the likely value of your claim is an important step that should be taken early (ideally before lodging a claim) and can help guide settlement discussions.
If you feel you have been discriminated against at work, please contact our team at didlaw, who will be happy to discuss your case with you. We can help navigate your way around discrimination claims compensation, and the process that follows.
This blog was written by Matthew Manso de Zuniga, paralegal at didlaw.
