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Discrimination awards to increase

Injury to feelings claims tend to be divided into 3 bands, the lowest being reserved for one off events, the mid range for more severe cases or those involving multiple incidents and the upper band for those of the most severe nature. Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 set out the ranges as between £500 - £5,000, £5,000 - £15,000 and £15,000 +.However, the awards were not increased in line with inflation and the issue of the correct level of such awards was raised in Da’Bell v National Society for the Prevention of Cruelty To Children [2010] IRLR 19 where it was argued that the successful employee should be able to benefit from increased compensation and that the bands should be increased further.As such the limits were raised to between £1,000 - £6,000, £6,000 - £18,000 and £18,000 - £30,000.

In Simmons v Castle [2012] EWCA, a personal injury case, the Court of Appeal awarded an increase of 10%. There were then a number of conflicting decisions as to whether a similar uplift should apply in discrimination claims in the Employment Tribunal. The recent case of Olayemi v Athena Medical Centre and Anor now suggests that such an uplift should be applied.

Ms Olayemi had been subjected to a campaign of sexual harassment resulting in her suffering post traumatic stress disorder and depression. She was dismissed from her post as a GP and it was expected that she wouldn’t be able to work for at least 18 months, increasing to part time until around 30 months later when it was expected she would be able to return to full time work. The Tribunal awarded her £752,333 for sex discrimination, unfair dismissal and breach of contract. Her claim was against her employer, and its principal and owner in person. It found she had been humiliated and intimidated with a view to forcing her out of the practice.She was awarded £30,000 for injury to feelings, the top end of the NSPCC guidance figures.

The issue arose over the calculation and how compensation should be measured. Under the Equality Act 2010, section 124(6) provides that the amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff. It goes on to state that the county court has power to grant any remedy which could be granted by the High Court in tort, such as personal injury claims. A separate provision then makes clear that an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).

The EAT concluded that the requirement was to award compensation which corresponds to the amount which could be awarded by the county court. They disregarded the argument that injury to feelings awards are not payable in the courts. They followed an earlier EAT decision of Beckford v London Borough of Southwark 2016 IRLR 178, EAT when giving their decision.Neither did the difference in costs regime between the courts and Employment Tribunal sway their view.In the court system the losing party generally pays the successful parties costs. In the Employment Tribunal, each side generally has to meet its own costs.Although the costs regime differs, the EAT concluded that this did not alter the requirement to award an uplift and the uplift was therefore correctly applied.

Such awards can be payable by employers and also named individual Respondents in the proceedings.Named individuals tend to include the perpetrator, management who failed to prevent the discrimination occurring and/or HR personnel. It appears likely that compensation awards for injury to feelings will now be more expensive. Training staff and managers on discrimination issues and handling of them is more important than ever before.

If you would like to discuss any issues raised in this article, we have specific employment law expertise in advising in this area. For further advice, please contact Angela Gorton

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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