An increase for injury to feelings: the Vento Bands and compensation in discrimination claims

When an employee accuses their employer of discrimination (for example on grounds of disability, sex or race) they can ask the Employment Tribunal to make the employer compensate them for “injury to feelings”. This award isn’t aimed at punishing the employer but at compensating the employee for the hurt, humiliation and upset suffered. It is separate to the award the Tribunal might make for financial loss such as loss of earnings if the employee left their job because of the discrimination.

The Vento Bands

In 2002 there was an important case in the Court of Appeal which for the first time set out what awards should be given in cases of workplace discrimination. In Vento v The Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 (usually just referred to as “Vento”) the Court said there were three bands of awards in discrimination claims:

  • The lower band applies to “less serious cases, such as where the act of discrimination is an isolated or one off occurrence”.
  • The middle band “should be used for serious cases, which do not merit an award in the highest band”.
  • The top band is appropriate for “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment…”.

The Court also went on to say that it would only be in “the most exceptional cases” that an award would exceed this top band.

The bands were increased once in 2009 to take into account inflation but by 2017 they were again out of step with the cost of living.

An Increase to the Vento Bands

In 2017 there was another important Court of Appeal case about workplace discrimination. In De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879) the Court asked the President of Employment Tribunals to update the Vento bands.

The President issued Guidance in September 2017 and confirmed that for claims presented on or after 11th September 2017 the Vento bands are now:

  • £800 to £8,400 for awards in the lower band
  • £8,400 to £25,200 for awards in the middle band
  • £25,200 to £42,000 for awards in the upper band.

For claims presented before 11st September 2017 the situation is rather more complex and involves calculating the bands according to the RPI (Retail Prices Index) for the date on which the claim was presented. The explanation of the calculation required can be found in the Presidential Guidance itself:

https://www.judiciary.gov.uk/wp-content/uploads/2015/03/vento-bands-presidential-guidance-20170905.pdf

Do remember that the Presidential Guidance isn’t binding but any Tribunal has to look at it and it would very unusual for the Guidance to then be disregarded.

An Employment Tribunal making an award for injury to feelings can decide what band applies and where within that band the case falls. It will take into account various factors including the number of incidents of discrimination, how serious they were and the impact they had on the employee.

If you are either bringing or facing a discrimination claim it is important to have a realistic idea at the outset about the value of the claim. This will involve looking at what allegations are being made and also taking into account any additional claim for loss of earnings.

Advice is available from various places including the CAB and, for employers, insurance-funded legal advice organisations. Some solicitors offer fixed-fee services and, under the Direct Access Scheme, employment barristers can give specialist and cost-effective advice even before a claim is presented.