When deciding how much compensation to award to a successful claimant in discrimination cases, the employment tribunal is able to make an award in respect of financial loss and non-financial loss i.e. injury to feelings.
Discrimination legislation does not clarify how such compensation should be calculated, so when deciding on the level of an award for injury to feelings, the employment tribunal has long referred to a case called Vento which set out three clear award ‘bands’, depending on the seriousness of the discrimination which has taken place:
- The lower band: “appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence”.
- The middle band: “serious cases, which do not merit an award in the highest band”.
- The upper band: “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment”. (Only in “the most exceptional case” should an award for injury to feelings exceed the top of this band.)
There are a number of factors that the employment tribunal considers when deciding the appropriate band for an award, including vulnerability of the claimant, the degree of distress caused, the position of the individual who has discriminated, and the seriousness of the treatment. From the employer’s perspective, it is notable that the employer’s size and/or resources do not have a bearing on the calculation of the award.
The ‘bandings’ are revisited now in line with inflation, and in respect of discrimination tribunal claims presented on or after 6 April 2018, it has recently been announced that the Vento bands shall be increased as follows:
|BAND||NEW LEVEL OF COMPENSATION|
|Lower – for less serious cases||£900 – £8,600|
|Middle – for serious cases which do not merit being in the higher band||£8,600 – £25,700|
|Upper – the most serious cases||£25,700 – £42,900|
|Exceptional cases||Over £42,900|
The upgraded Vento Bands for injury to feelings compensation have been published following consultation.
The “Vento Bands” consultation, launched by the Presidents of Employment Tribunals in England & Wales and Scotland in July 2017, looked at the uprating of bands of compensation for injury to feelings in discrimination cases. The proposal to uprate the bands came as a result of a Court of Appeal case, De Souza v Vinci Construction (UK) Ltd, in which it was decided that compensation for injury to feelings and personal injury in discrimination cases should be increased by 10% to take inflation into account.
The new bands will apply to any claims issued on or after 11 September 2017 and the increases from the current Vento bands are:
|Lower – for less serious cases||£500 – £5,000||£800 – £8,400|
|Middle – for serious cases which do not merit being in the higher band||£5,000 – £15,000||£8,400 – £25,200|
|Upper – the most serious cases||£15,000 – £25,000||£25,000 – £42,000|
|Exceptional cases||Over £42,000|
For any claims presented before 11 September 2017 it will be open to the tribunal to adjust the bands to reflect inflation, and Presidential Guidance will be issued which will include the methodology for doing this.
The new bands will be reviewed in March 2018 and annually thereafter.
The new bands represent a significant increase in the potential compensation for injury to feelings. Aside from injury to feelings, successful claimants can also pursue loss of earnings and there is no cap on compensation for discrimination. Equality and diversity training is a useful tool to help minimise the risk of discrimination claims within your organisation.