Injury to feelings awards – what are they worth?

As employment specialists we are often asked – both by individual clients who are considering bringing discrimination or whistleblowing claims, and by employer clients who are facing the prospect of defending them – to quantify what an “injury to feelings” award might be worth if a claim is successful.

In typical lawyer fashion, the answer is usually “it depends”, but the Employment Appeals Tribunal (EAT) recently gave some helpful guidance in its judgment in the case of Graham v Eddie Stobart.

What is an “injury to feelings” award and how are they calculated?

In some claims – the most common examples being discrimination and whistleblowing – in addition to (or instead of) seeking compensation for any loss of earnings, Claimants can also ask to be compensated for the injury caused to their feelings by any unlawful discrimination (or whistleblowing dismissal/detriment) which is found to have taken place.

There is no statutory guidance as to how to measure injured feelings or how much an award of this kind should be, and instead the Tribunals and Courts have provided guidance over the years.

The 2003 case of Vento v Chief Constable of West Yorkshire Police established the “Vento bands” which separate out potential awards (and their potential value) by reference to the seriousness of the unlawful act which the claim is based on. The amounts set out in the Vento bands have since been updated and are increased each year in line with inflation. A summary of the Vento bands is set out below.

Lower band

For less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.

Current award range: £1,200 – £11,700

Middle band

For serious cases, which do not merit an award in the highest band.

Current award range: £11,700 – £35,200

Top band

For the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.

Current award range: £35,200 – £58,700

Above the top band

For only the most exceptional cases.

Current award range: More than £58,700

The Tribunals have taken into account various factors in determining which band awards fall into, including Claimants’ personal characteristics, any medical condition they are suffering from, the impact upon their mental health and personal relationships caused by any discrimination, any impact upon their career prospects, and the manner in which their employer deals with any grievance.

Graham v Eddie Stobart

Ms. Graham was part of a redundancy exercise at the depot in Newhouse where she worked for Eddie Stobart. As part of this process, she asserted her right to be offered suitable alternative employment ahead of her colleagues who were not pregnant, and Eddie Stobart asserted that the role she sought was not suitable and she would therefore have to interview for it along with her colleagues.

Ms. Graham raised a grievance but received no response, despite mentioning it at a later consultation meeting. It later transpired that her emails were being blocked by Eddie Stobart’s firewall and had not been received.

Ultimately, Ms. Graham was dismissed by reason of redundancy. She brought claims for automatic unfair dismissal, pregnancy/maternity discrimination and for a detriment because she exercised her right to take maternity leave.

Her unfair dismissal claim failed but the others succeeded, and the Tribunal awarded her £10,000 for injury to feelings (at the lower end of the Middle Vento band).

Eddie Stobart appealed the award, arguing that it was so excessive as to be perverse.

The EAT upheld the appeal, finding that Ms. Graham’s evidence had shown that whilst she was shocked and upset by what she felt was a dismissive attitude to what she had to say and her rights (i.e., the failure to consider her grievance), there was no evidence of significant injury to her feelings. Eddie Stobart’s failure to respond to Ms. Graham’s grievance was an isolated act and was in effect an oversight or failure to be more proactive in following it up with her – rather than a wilful refusal to consider it.

The EAT substituted a much lower injury to feelings award of £2,000 (at the lower end of the Lower Vento band), and indicated that but for the fact that Ms. Graham had had to chase a response to her grievance while she should have been enjoying her maternity leave, the award might have been even lower.

The EAT’s guidance

In reaching this decision, the EAT commented that the following factors would assist Tribunals in determining how to quantify injury to feelings awards:

• The Claimant’s description of the injury
  Tribunals should give equal weight when scrutinising apparent stoicism or apparent upset. Sometimes, stoicism is a sign that the Claimant is inarticulate rather than unfazed. Tribunals should also consider whether a Claimant has any particular fragility that makes them more vulnerable to upset, or which means that the experience has a greater impact on them that it would have on others.

• The duration of any consequences
  A Claimant’s upset may be fleeting or it may be long lasting and their levels of fortitude and resilience will be important for the Tribunal to consider.

• Any effect on past, current and future work
  The Tribunal may need to consider whether a Claimant’s self-esteem was bound up in their occupational life (as this differs from person to person). Evidence that the Claimant wanted to leave an enjoyable and fulfilling line of work due to discrimination can determine the hurt caused by it.

• Effect on personal life or quality of life
  It can be helpful for the Tribunal to compare the Claimant’s life both before and after the discrimination, including by taking a third-party view (if appropriate), such as that of a family member.

The EAT also commented that:

• overt discrimination is more likely to cause distress and humiliation;
• discrimination which takes place in front of colleagues or others may well cause greater harm;
• disciplinary threats may allow the Tribunal to infer more serious injury to feelings; and
• exclusion of a Claimant isolates them can also indicate a more serious injury.