Awards for injury to feelings may be made in discrimination and unlawful detriment cases. As with most awards of compensation in the employment tribunal, their effect is not meant to be punitive, but should consider the effect on the claimant.
The well-known "Vento guidelines" that guide tribunals in making these awards arose from the Court of Appeal case of Vento v Chief Constable of West Yorkshire Police (No.2), now over 20 years old. The guidelines established three bands of potential awards - lower, middle, and top. According to Vento, an award for less serious cases, such as a one-off act of discrimination should fall within the lower band; awards for serious cases that do not merit an award in the highest band, should fall within the middle band, and awards falling within the top band are appropriate for the "most serious cases" such as those involving lengthy campaigns of discriminatory harassment. Awards above the top band should only be made in the most exceptional cases.
According to previous case law, the assessment of injury to feelings is not an "exact science" and it is rare for the Employment Appeal Tribunal ("EAT") to interfere with an employment tribunal's quantification. However, in the case of Eddie Stobart Ltd v Graham that is exactly what they did.
What happened?
The claimant worked for the well-known respondent as a planner, based at Newhouse. Around six months after she announced her pregnancy the respondent decided to cease its planning function in Scotland. Nine planners based at Newhouse, including the claimant, were at risk of redundancy, and four new transport shift manager ("TSM") roles were being created.
During the consultation process, the claimant asserted her right to be offered suitable alternative employment during her maternity leave in preference to the other redundant employees. However, the respondent did not believe the TSM roles were suitable alternative employment. The claimant was invited to a competitive interview for the TSM role but was unsuccessful. She subsequently emailed a grievance to the manager who had managed the initial stages of the consultation. It came to light two days later at the final consultation meeting that the grievance had not been received and the claimant was advised to send it to another email address. Once again, the email was not received - on both occasions the respondent's firewall had blocked them. When the claimant raised the issue of the unanswered grievance again, the respondent took no further substantive action on it.
The claimant made claims for automatically unfair dismissal, detrimental treatment, and victimisation, but only the complaint of detrimental treatment relating to the grievance was successful. An injury to feelings award of £10,000 was made, which at the time was at the lower end of the middle Vento band.
EAT judgment
The respondent appealed the award, arguing that it was so excessive as to be perverse and that the employment tribunal had not given sufficient reasons for the award. The EAT upheld both grounds. There had been scant evidence on the injury caused to the claimant's feelings, and the EAT agreed that in such circumstances it was open to the tribunal to consider the manner of the discrimination. In this case, however, the extent of the employer's failure had been a failure to engage with the claimant about the content of her grievance and the reasons why it had not been received by them. The only proper and reasonable conclusion was that the employer's failure, which was procedural in nature, was limited in both scope and impact and did not justify an award within the middle Vento band. A sum of £2,000, which was towards the lower end of the lowest Vento band, was substituted. In awarding this amount, the EAT was willing to infer a greater degree of injury arose by virtue of the fact the claimant was an expectant mother - experiencing discrimination that detracts from the joy associated with birth "…results in a 'greater relative diminution in happiness that merits recompense'."
In coming to this decision, the EAT noted that although the Vento bands refer to frequency and duration of exposure to discriminatory conduct ("lengthy campaign" at the top end and "isolated or one-off occurrence" at the lower end) that is not the only measure that can support an inference of injury. Other relevant considerations include whether the discrimination was overt, the existence of ridicule or exposure and whether the discrimination exposes an asymmetry of power, influence or information. The judgment also sets out that a tribunal can also be greatly assisted by evidence of the following:
- The claimant's description of their injury;
- The duration of the consequences of the injury;
- The effect on past, current and future work; and
- The effect on personal life or quality of life.
What can employers learn from this?
The case confirms that injury to feelings awards must be proportionate to the actual harm done to a claimant. Claimants should note the need for direct evidence of the injury they have suffered and its impact. Had more evidence been given by the claimant, a higher award may have been justified. As a matter of course, employers should also always follow up when an employee has indicated they have attempted to raise a grievance. In this case, having done so may have averted the need for an employment tribunal hearing at all.
