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Injury to Feelings Awards in the Tribunal – What is the Key Consideration?

The Employment Appeals Tribunal recently affirmed previous case law and the first instance Tribunal’s decision that when calculating an injury to feelings award the relevant consideration is the effect of the unlawful discriminatory treatment on the Claimant, not the gravity of the acts of the Respondent in Komeng v Creative Support.

In this case, the Tribunal found that the Respondent's failure to take any steps to enrol the Claimant on a course, in contrast to the way that named comparators of a different race had been treated, constituted unlawful direct race discrimination. The Tribunal also found that it was unlawful direct race discrimination for the Claimant to have had to work every weekend.

After finding that the Claimant was subjected to discrimination the Tribunal then assessed the award which should be made to the Claimant. In doing so, the Tribunal focussed on the actual injury suffered by the Claimant and not the gravity of the acts of the Respondent.

As part of its considerations, the Tribunal noted that the Claimant continued to work for the Respondent for several years in the face of its refusal to help him to access the course which must have caused significant upset and distress. It also held that the Claimant persevered with his aspirations to obtain better qualifications for several years whilst receiving no support and this indicated that his distress was not insignificant.

In light of these factors, the Tribunal valued the appropriate level of compensation in the sum of £8,400 near the top of the lower Vento band.

Following an appeal from the Claimant in respect of the amount awarded the EAT upheld the original decision relating to the appropriate Vento band. In its findings, it held that whilst it was possible other Tribunals may have reached a different decision there was no error of law in the Tribunal’s decision in this case which focussed on the effect of the treatment on the Claimant.

This case also acts as a reminder that it is not the case that only one-off incidents fall within the lower Vento band.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.