As a boutique discrimination law practice we are well versed in damages for injury to feelings. These are damages for the harm done to the person as a result of the discrimination suffered. The level of award is separated into ‘bands’ based on the severity of the treatment and the impact on the individual. The ‘bands’ were established by the case of Vento and the mechanism of establishing injury to feelings awards has not changed since 2022.
The case of Shakil v Samsons Ltd concerned the Claimant who was successful in her claims for pregnancy discrimination. The Claimant worked for the Respondent for six months and fell pregnant. She called in to work unwell with ‘morning sickness.’ In response, the Respondent reduced her hours without notice, criticised both her conduct and capability and then, one month before her maternity leave started, placed her at risk of redundancy.
The Tribunal came to the conclusion that the Respondent’s actions directed related to the Claimant’s pregnancy and that her redundancy was a sham because of her pregnancy. She was awarded £5,000 in injury to feelings. The Tribunal judgment did not reference the Vento bands and there was no assessment of why the Claimant’s award was made and on what basis. The Claimant therefore appealed the award.
The Employment Appeal Tribunal (EAT) allowed the appeal and found that the ET’s assessment of the Claimant’s injury to feelings award was ‘totally flawed.’ The ET had entirely failed to apply the Vento guidelines which is essential when justifying an award. The ET failed to:
- Engage with the Claimant’s evidence about the injury to feelings she had suffered as a result of the discriminatory treatment. This had been provided through her witness statement;
- Make any findings on the facts about the injury she had suffered;
- Make any reference to Vento;
- Engage with any authority or provision relevant to the assessment of an injury to feelings award;
- Identify the bands relevant to this kind of claim as set out in the Presidential Guidance;
- Clarify which band the award fell within.
In this particular case another consideration was the fact that the Claimant was pregnant at the time the discrimination took place. Her circumstances were such that she was uniquely vulnerable. The case was remitted to a fresh tribunal to reconsider the injury to feelings award.
This blog was written by Elizabeth McGlone, Partner at didlaw
