When negotiating a Settlement one thing which leads to much confusion is the amount to allocate to any potential claim for ‘Injury to Feelings’? Employees and employers can be unrealistic about things would pan out in a tribunal with award subject to considerable discretion of the tribunal provided they are within the ‘Vento’ guidelines.
- Introduction
When negotiating a Settlement one thing which leads to much confusion is the amount to allocate to any potential claim for ‘Injury to Feelings’? Employees and employers can be unrealistic about how things would pan out in a tribunal with awards subject to considerable discretion of the tribunal provided they are within the ‘Vento’ guidelines (see below).
My source material on this is 42 pages (net of many links to yet more stuff!). So, it’s not surprising it’s a headache.
To help, I have prepared this ‘user friendly’ guide. I want it to read as neutral so that employees and employers can both refer to it… Bear in mind that each case is different but with a Settlement, credit needs to be given for certainty through avoiding risky and stressful tribunals, legal costs, stress and damage to either parties’ reputation. Credit of 40% might be given for this as the sums below were after a tribunal claim.
I’ve reduced a lengthy summary of illustrative Employment Tribunal Awards (full copy available on request by email) so that readers can quickly compare the particular facts in any dispute with awards made on actual tribunal cases.
- When can Injury to feelings (ITF) be awarded?
ITF awards apply to discrimination and ‘whistleblowing’ claims.
- Limiting injury to feelings/aggravated damages
As a general point of guidance steps should be taken to minimise ITF… Being fair and acting quickly to sort things out will normally keep awards down.
In a recent harassment case of mine- with multiple obscene emails so no reasonable basis for not promptly admitting the discrimination and apologising quickly- the employer prevaricated and generally made things much worse when it should have apologised and taken action against the perpetrator. The employer could have offered appropriate support such as counselling and monitoring. This led to an award of £25,000 when things could have been resolved for £5000.
In a much more positive case, we agreed with the employee (who even helped design the training module- to educate the team on harassment at work) she didn’t leave or bring a claim!
When taking steps always be genuine: apologies must be sincere and prompt and training must address the issues which have actually happened… You can use this as a defence in future claims- ‘reasonable steps.’
Note that Tribunals tend to find that hurt/ITF stops once real steps have been taken… leading to lower awards.
An employer must never respond negatively by undermining the victim or the issues, ignoring the complaint, or actively targeting them (Victimisation). This will increase ITF awards.
- Aggravated damages
Employers who respond particularly badly may be exposed to an additional award for aggravated damages to reflect:
- Covering up or trivialising wrongdoing
- Failure to fairly investigate or address a grievance
- Intimidating conduct
- Ignoring the problem which caused the discrimination (see training above)
These tend to be in the £1-2,000 region.
- Maximum & minimum awards – The ‘Vento’ guidelines in 2021
There are outer limits to ITF awards set in the ‘Vento’ guidelines (a case which set the limits and bands, updated each year to reflect inflation).
| Lower Band | Middle Band | Top Band |
| £900-£9100 | £9100 | £45,000 |
| Less serious cases or one off/isolated | Serious cases which don’t merit Top Band | A lengthy campaign of harassment- injury to health- victimisation for ‘exceptional cases’ |
- Factors to consider
Examples of things to be taken into account on which band the conduct falls into include:
- Personal characteristics- the employee is particularly vulnerable
- Any Medical condition
- Impact on career
- Manner in which the Employer has responded to the discrimination
- The ACAS Code (1)- increase or reduction to awards
Not taking a grievance seriously can lead to an increase of up to 25% on any award and failure by the employee to follow the grievance procedure can lead, to a 25% reduction.
- Examples of Tribunal awards for Injury to Feelings
In my source materials there’s a lengthy summary of awards for ITF with a summary of the reasoning. Most of these ITF awards are in addition to compensation for lost earnings where the employee has been dismissed or resigned. Here are some helpful examples:
| Type of discrimination | Lower band | Mid band | Higher band |
| Age | Rawnsley v Queniborough–
Demeaning comment to young employee as a ‘spoilt child’- followed by prompt apology from manager– £1000 |
A v Bonmarche Ltd –in administration
Undermining comments about female employee during menopause over 4- month period/ostracised after period of sick leave- resigned- £18,000 |
Giwa-Amu v Dep Work and pensions–
Ongoing campaign of discrimination, leading to stress and loss of job during training stage with consequent impact on career- £35,000 |
| Disability | Davies v Scottish Courts and Tribunals–
Employer did introduce some reasonable adjustments but employee was dismissed prematurely for health and safety reasons. However, she was reinstated to her job – £5000 |
Perrin v Liverpool University – NHS Trust
Employee dismissed for long term health absence- Trust ignored its own policy which could have led to a career break. Despite a finding that Trust was pursuing a legitimate goal of looking after patients- an award of ITF made- £15,000 |
Evans v GE Capital-
Employee with disability subjected to disciplinary proceedings after mentioning a discrimination complaint- undermining comments- failing to refer to Occupational Health leading to depression- suicidal thoughts- constructive dismissal- £30,000. Additional award for personal injury was made- £51,000 |
| Pregnancy/Maternity | Remacha Yague v Arena Sales Ltd
Requirement to work in office imposed arbitrarily – no dismissal- £8400 |
Ship v City Sprint
Intrusive questioning of Employee about birth control, stereotyping including assumption that Employee would not want to return after maternity absence, redundancy process a ‘sham’ – alternative job offered knowing it was unsuitable- loss of job- £25,000
Cousins v The Nannery Refusal of most ante-natal appointments, false disciplinary allegations brought/process handled in a heavy-handed way/failure to fairly investigate/grievance converted into disciplinary with absence of prior warnings- £15,000 plus £2000 aggravated damages
|
Tbc – none at present |
| Race | Nazarczyk v TJ Morris Ltd
One off comment: ‘if you don’t like it here go back to Poland’- £1500
|
Sokolava v Humdinger
Oppressive insistence on speaking only English at work/unjustified disciplinary proceedings related to complaint regarding this/undermining of Employee’s grievance/loss of job- £10,000 |
Annamallay v Barclays
Ongoing campaign of harassment including several meetings over 3 years- failure to stop harassment by employer- grievances led to even worse treatment- placed on unfair PIP- manager ignoring complaints of discrimination £30,000 plus £30,000 for personal injury
|
| Religion or Belief | Holland v Angel Supermarket
Sikh employer acted in a negative way to Employee’s confirmation that she was a practising Christian and making of false allegations- £9000. |
Breslin v Loughrey
Catholic employee subject to gratuitous insulting campaign about religion including mocking image of Jesus etc. on a ‘daily basis’ in a very degrading way. Complaint results in very aggressive response- ‘I pay your f*cking wages’. Loss of job. Breach of privacy. Desecration of religious statues. Complicit conduct by 2 colleagues with manager. £30,000. |
|
| Sex | Smillie v Secretary of State for Justice
Prison service had a policy where employees could be required to work different hours at short notice. This was applied in an unreasonable way. Employee had to bring son to work with her and explained she couldn’t leave him at home. Employee subjected to disciplinary procedures but remained in employment- £3850 |
Thompson v Scancrown Ltd
Employees request for flexible working on return from work post maternity (leaving early to pick up child). Employer’s refusal found by tribunal not to be ‘proportionate’. The hurt was more than trivial and impacted finding another job, but injury was relatively short in duration- £13,500 |
Southern v Britannia Hotels Ltd
Young employee with existing mental health problems complained of harassment/lodged a grievance/no action against perpetrator- £19,500 |
| Sexual orientation | Keenan v Benugo
£1500 |
McMahon v Redwood
Employee told at outset to keep fact that she was gay to herself at first meeting. Selected for redundancy because of sexual orientation The award was mainly for the comment about hiding her sexual orientation- £8000 |
Allen v Paradigm Precision
Senior employee who takes career seriously subjected to ongoing homophobic insults, copied in on insulting materials about gay men, refused adoption leave, grievance procedure dragged out leading to resignation- £26,300
|
| Whistleblowing | Todd v Fairways Care
Employee raised concerns about being left alone with residents without her having the necessary DBS certificate leading to her being portrayed in a negative light. Relatively low award reflected that events which followed were not entirely connected with protected disclosure – £4000 |
Lough v Taaks of Scotland
Employee complains about COVID policy failures leading to dismissal- £12,500 |
Carlton v Regency Hospitals
Employee raised concerns regarding safeguarding and was ostracised, suspended and put through disciplinary procedure and dismissed. All attempts to appeal dismissal were ignored- £25,000 plus £10,000 aggravated damages |
- Common factors
The following are helpful themes when discussing which band any ITF will fall into:
Higher band: ongoing campaign connecting with discrimination leading to dismissal, disruption of career, bullying following discrimination complaint, ganging up on employee, exacerbation of medical issues, ‘sham’ disciplinary allegations, making light of grievances, disregard for procedures.
Mid band: Absence of malice by Employer but failure to follow correct procedures leading to genuine losses (eg: Job/opportunity), .exaggeration of disciplinary type issues
Low band: One- off relatively trivial incident without knock- on consequences.
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