Remedies for discrimination claims

Remedies for discrimination claims

Under s.124(2) EA, when a tribunal has made a finding of unlawful discrimination, it may make:

• a declaration of the rights of the claimant following the discriminatory act  (i.e. that he/she was discriminated against);

• an appropriate recommendation; and/or

• an order for compensation.

Recommendation

The tribunal may recommend that, within a specified period of time, the employer take action to remove or reduce the adverse effect on the claimant.  If the employer fails to comply with the recommendation insofar as it relates to the claimant, the tribunal can award compensation or additional compensation.

Compensation

The tribunal should make an award of compensation which it considers to be ‘just and equitable’. There is no upper limit on the compensation which can be awarded.  The heads of damage include:

• Loss of earnings

• Injury to feelings and aggravated damages

• Personal injury

In addition, a tribunal may increase or reduce an employee’s compensation by up to 25% where there is evidence of an unreasonable failure (on the part of the employer or employee) to follow the ACAS Code.

Loss of earnings

Loss of earnings and benefits may be claimed where appropriate, for example where the discriminatory act was dismissal, the loss of ongoing earnings and benefits.  However, other examples include where the discriminatory act was failure to promote or failure to give a bonus. The amount awarded by way of loss of earnings can often be high, given the fact there is no upper limit on the award. However, a claimant is expected to take reasonable steps to mitigate their loss, usually by looking for a new job if the discrimination has resulted in him/her being out of work. 

Injury to feelings and aggravated damages

Unlike unfair dismissal compensation, which is limited to financial loss, discrimination compensation can also cover non-financial losses. In most cases, this will include an injury to feelings award.

The EA 2010 expressly provides that compensation for discrimination may include (or be made up entirely of) compensation for injured feelings. An award for injury to feelings is separate from an award of compensation for loss of earnings. A claimant can therefore recover for injury to feelings even when they have suffered no financial loss. Compensation for injury to feelings in discrimination cases is assessed in the same way as any other claim in tort.

Vento bands

In the leading case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, the Court of Appeal set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards:

• The lower band – “appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”

• The middle band – “serious cases, which do not merit an award in the highest band”

• The top band – “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race”

• Only in “the most exceptional case” should an award for injury to feelings exceed the top band

The 2024 annual update to the Vento guidelines (which give ranges for injury to feelings awards in discrimination cases, depending on severity) have been published. In respect of claims presented on or after 6 April 2024, the Vento bands are:

• a lower band of £1,200 to £11,700 (less serious cases);

• a middle band of £11,700 to £35,200 (cases that do not merit an award in the upper band); and,

• an upper band of £35,200 to £58,700 (the most serious cases), with the most exceptional cases capable of exceeding £58,700.

Aggravated damages

Aggravated damages are awarded in the most serious cases where the behaviour of the respondent has aggravated the claimant's injury. They can be awarded where the respondent has acted in a "high-handed, malicious, insulting or oppressive manner". This would usually be the case where there are clear examples of malice or bad intention on the part of the respondent, and indeed intention is an important factor.  However, it is important for the tribunal not to focus on the respondent's conduct and motive; it is the aggravating effect on the claimant's injury to feelings that is important. Aggravated damages are designed to compensate the claimant for injury and not to punish the respondent.

Personal injury

Damages for personal injury can be claimed as part of discriminatory compensation, but such cases are rare.  The majority of personal injury claims as part of discriminatory compensation will be concerned with psychiatric injury, e.g. nervous breakdown, severe depression or post-traumatic stress disorder. Medical evidence will be required.