For unfair dismissal, there is a maximum award, which is reviewed every year by the government. However, this is not the case for discrimination awards, which are said to be ‘uncapped’. If that’s the case, what are these awards based on instead, what guidance is followed in calculating the award?
Compensation for discrimination is referred to as an award for ‘injury to feelings’. Any award for injury to feelings will depend on:
· the nature and severity of the discrimination or harassment
· how long the discrimination or harassment has gone on for
· the degree of hurt or distress suffered.
There is no fixed formula for tribunals to calculate awards for injury to feelings, but guidelines were established originally in Vento v Chief Constable of West Yorkshire Police (No 2) . These guidelines established three bands of compensation, depending on the seriousness of the harassment and injury to feelings suffered by the claimant.
In Simmons v Castle , the Court of Appeal ruled that the level of damages in certain types of civil claim should be uplifted by 10% where the claimant would be unable to recover a success fee. Subsequently, in De Souza v Vinci Construction (UK) Ltd , the Court of Appeal upheld this principle, ruling that the 10% uplift should be applied to compensation awarded for discrimination by an employment tribunal. Under the Equality Act 2010, consistency in awards for discrimination compensation is required as between the employment tribunal and the county court (in England and Wales) or the sheriff court (in Scotland) in respect of non-employment claims.
In light of the above decisions and following a consultation, the Presidents of the Employment Tribunals (for England/Wales and Scotland) issued Presidential Guidance to tribunals with regard to the bands of compensation for injury to feelings in discrimination cases. From 6 April 2022, the bandings are as follows.
· A lower band for less serious cases: £990–£9900.
· A middle band for cases that are more serious: £9900–£29,600.
· An upper band for the most serious cases: £29,600–£49,300.
Only the most extreme cases would attract an award for injury to feelings in excess of £49,300.
The most recent rates for the bands can be found here.