Increase in compensation for discrimination claims

Where a Claimant succeeds in a discrimination claim, an Employment Tribunal has the ability to:

• Order payment of compensation (uncapped)
• Make recommendations
• Make a declaration as to the Claimant’s and Respondent’s rights

Injury to feelings

Unlike claims for unfair dismissal which are limited to compensation for financial loss suffered as a result of discriminatory acts, compensation for discrimination can include injury to feelings. Injury to feelings covers things such as hurt, upset or anxiety caused as a result of discriminatory acts. A Claimant can claim injury to feelings even when they have no financial loss.

In assessing injury to feelings in discrimination cases, the Tribunal refers to the Vento guidelines which sets out  three bands of awards for compensation (the ‘Vento bands’):

A lower band – less serious cases, one-off acts

A middle band – serious cases but not serious enough to be in the upper band

An upper band – the most serious cases such as campaigns of discrimination. In exceptional cases a Tribunal may exceed this band.

The President of the Employment Tribunals for England and Wales and the President of the Employment Tribunals for Scotland issued a consultation in July 2017 (which closed in August 2017), on uprated bands of compensation for injury to feelings in discrimination claims. In September 2017, the joint Presidential Guidance was issued for claims made on or after 11 September 2017 setting out the following uprated bands for Employment Tribunal claims:

Lower band - £800 to £8,400

Middle band - £8,400 to £25,200

Upper band - £25,200 to £42,000

Exceptional cases - £42,000 plus

This uprating takes into account inflation and the Simmons v Castle 10% uplift. These bands will be reviewed in March 2018 and then yearly after that date, with any new guidance coming into effect on or after 6 April of that year.

For claims brought before 11 September 2017 the situation is not entirely clear. The Tribunal has discretion on whether to increase the previous bands and by how much, however at this stage we will have to wait and see what approach the Tribunal takes.  

The previous bands for compensation in discrimination claims were much lower, especially when it came to claims under the middle or upper bands. This uprating could result in increased exposure for employers, especially when coupled with the recent removal of Tribunal fees. While the advice to employers around avoiding discrimination of employees does not change, the cost if employers do may be much higher than before.

Chattertons Employment Team are experienced in dealing with all aspects of the law on discrimination in the workplace. If you would like more information or advice on anything covered in this article, please contact the Chattertons Employment law team.