Injury to Feelings - In the Spotlight

Published: 27th November 2009

Compensation following a finding of discrimination can cover financial losses, injury to feelings, personal injury and, in exceptional cases, can include aggravated or exemplary damages. It is almost inevitable that someone who suffers discrimination will have injured feelings - subjective feelings of, for example, upset, anxiety, worry, humiliation or distress.

Back in 2003, in the Vento case, the Court of Appeal, having observed that "translating hurt feelings into hard currency is bound to be an artificial exercise" set three bands for compensation for injury to feelings to help Tribunals do just that. Since then, however, Tribunals have not taken a consistent approach to the question of whether the bands should be increased in line with inflation.

The issue appears to have been settled by the Employment Appeal Tribunal in the case of Da'Bell v NSPCC (2009) and the bands, updated for inflation, are now:

• Low - up to £6,000.00
• Middle - £6,000.00 to £18,000.00; and
• Top - £18,000.00 to £30,000.00

The low band is designed to cover isolated or "one off" acts of discrimination. The top band is designed to cover serious cases, for example, those involving a lengthy campaign of discriminatory harassment. However, assessing whether a case should fall in one band rather than another is an art rather than a science and so, given the recent increase in the bands, we have decided to shine the spotlight on the principles the Tribunals should apply when assessing injury to feelings and some of the awards that they have made over the last 18 months or so.

The main principles were set out by the Employment Appeal Tribunal in 1991 in the Armitage case and are as follows:

• awards should be designed to compensate the employee and not punish the employer;
• awards should not be too low as it could diminish respect for the equality legislation;
• awards should not be excessive for they could then be seen as untaxed riches;
• there should be some broad general similarity between awards for injury to feelings and those made in personal injury cases; and
• before making an award Tribunals should remind themselves of the value of the sum they have in mind by reference to what could be purchased with the money or to earnings.

Armed with the principles alone it is still difficult to assess whether a particular case should fall within a particular band or what sum would be appropriate. In practice, the best way to assess what sum a Tribunal is likely to award is by reviewing previous decisions. Therefore, we have reviewed three Tribunal decisions to help you assess when a case may fall in a particular band.

In Rowe v Birmingham Children's Hospital NHS Foundation Trust (2008 - ET) Ms Rowe and a number of other nurses were caring for a child. Both Ms Rowe and the child were of Afro‑Caribbean origin. At the end of one shift, Ms Rowe and three of her colleagues were sat at the bedside of the child discussing a hen party. Ms Rowe asked why she had not been invited and the colleague said that it was because she was black.

Ms Rowe made a formal complaint saying that she had been embarrassed and humiliated by the comment, the reaction of the colleagues and was concerned about the impact it could have had on the child. The colleague who made the comment wrote to Ms Rowe to apologise for it and was disciplined by the Hospital. However, Ms Rowe no longer felt able to work on the ward where the incident had occurred. The Tribunal awarded Ms Rowe £2,500 as compensation for injury to feelings.

In Petryk v Cancer Research UK (2008 - ET) the Tribunal found that Cancer Research had started disciplinary proceedings against Ms Petryk for alleged financial misconduct because she was Polish, when it had not done so in respect of an English comparator, and that the disciplinary procedure, which had lasted for some 18 days, until Ms Petryk was cleared of the misconduct, had created an intimidating atmosphere and so constituted harassment.

The Tribunal accepted Ms Petryk had been prescribed tranquilisers as a result of Cancer Research's actions and noted that she had not received a full apology. Therefore, the Tribunal decided that an award in the lower band was appropriate and that the appropriate sum, taking into account a small award for aggravated damages due to Cancer Research's conduct of the Tribunal proceedings, would be some £6,500.

In Kawango v Ramzan Dhanji and Kubra Dhanji (2008 - ET) an award of £20,000.00 was made to Ms Kawango as the Tribunal accepted her account of the treatment she had received while working for the Dhanji's as a domestic helper. Ms Kawango said that she had not been paid, had worked throughout each day from 7am, had slept on a mattress on the kitchen floor and was only allowed out of the house to go to church.

Ms Kawango left the Dhanjis with the help of a friend she had made at church. The Dhanjis then attempted to have Ms Kawango deported but, having failed to do so, offered to pay her wages at the Tanzanian rate (Ms Kawango came from Tanzania), a sum of around £380.00.

The Tribunal accepted that the Dhanjis had engaged other European domestic helpers, had paid them at a rate in excess of the national minimum wage, and that their treatment of Ms Kawango had been, in part at least, because she was a black African from Tanzania.

The Tribunal said the award took into account Ms Kawango's distress and harsh treatment over a prolonged period of around 10 months.

While the appropriate award in any case will turn on the facts, Tribunals have to strike a balance between the bands when dealing with an isolated but serious act of discrimination. Therefore, there is always a risk that a Tribunal, when faced with a discriminatory dismissal, will consider that the middle band is the appropriate one. Moreover, an award for injury to feelings is just one of a number of awards a Tribunal can make for discrimination and the combined value of compensation can be high especially as there is no cap on awards for financial losses.

If you would like any advice upon the matters raised please call your usual contact in the Mace & Jones Employment and HR Team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.