Employer liability and injury to feelings awards
Employers will be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment, whether or not it is done with the employer’s knowledge or approval.
If a claim for discrimination is successful in an Employment Tribunal, the Tribunal can make awards to cover financial loss as well as awards for ‘injury to feelings’. Injury to feelings awards are assessed using a banding system called the ‘Vento bands’ and these have increased. An injury to feelings award is a remedy for the upset, distress or anxiety that a worker or employee might have suffered as a result of being subject to discrimination. This type of award is considered separately from any claim for financial loss that may have been suffered as well, such as loss of earnings.
A worker or employee who has been made very ill by the discrimination could also make a claim for personal injury in addition to a claim for injury to feelings.
As such, unlike many other claims in the Employment Tribunal, such as unfair dismissal and/or breach of contract where compensation is only awarded for financial loss, in discrimination claims the compensation can cover non-financial loss too, and a successful Claimant may be able to recover an award for injury to feelings even where they have suffered no financial loss at all.
In addition, for claims such as unfair dismissal, there is a cap on the amount of compensation a successful employee can be awarded. However, there is no cap on compensation for discrimination claims and it is therefore crucial that employers ensure they are doing all they can to prevent any discriminatory acts happening within the workplace or the consequences could be incredibly costly to the organisation.
General increase to Vento bands – 6 April 2022
The Presidents of the Employment Tribunals in England & Wales and Scotland have issued new guidance on Employment Tribunal awards for injury to feelings and psychiatric injury. The update states that for claims presented on or after 6 April 2022, the Vento bands will be:
- £990 to £9,900 for the lower band—less serious cases, most commonly where there has been a one off, isolated discriminatory act and the impact on the claimant is less severe;
- £9,900 to £29,600 for the middle band;
- £29,600 to £49,300 for the upper band—the most serious cases, for example where there has been repeated, systematic discriminatory harassment over a longer period of time and the impact on the Claimant is more severe;
- £49,300 and above for the most exceptional cases.
Whilst these increases to the Vento bands are relatively low when compared with last year’s figures, the announcement serves as a timely reminder as to how costly discrimination claims can be if employers aren’t vigilant to preventing this type of behaviour occurring in the workplace.
Reasonable steps defence
Many employers faced with a discrimination or harassment claim by an employee may seek to try to defend the claim by arguing that they took ‘all reasonable steps’ to prevent employees from either committing a particular discriminatory act or committing such acts in general. The threshold that must be met is a high one and will involve the employer demonstrating that they have taken all steps reasonably required to prevent the incidents occurring. One ‘reasonable step’ that is likely to assist employers in defending any discrimination claim is to show that the organisation has carried out regular equality and diversity training to the workforce and that this training has been understood by all and is effective in practice. However, getting this right can be tricky and time consuming.
The case of Allay (UK) Ltd v Gehlen is a prime example of where the ‘reasonable steps’ defence failed as the equality and diversity training carried out for staff was not effective in practice (as refresher training hadn’t been provided) and had clearly not been understood by certain members of the workforce. For more information about this case and the reasonable steps defence, please see our previous article here.
Importance of training
The case of Allay and the increase to compensation for discrimination serves as a reminder of the importance of preventing and mitigating against discrimination in the workplace and how you may be able to defend a claim on this basis by showing you took ‘all reasonable steps’ to prevent the behaviour occurring. In this regard, ensuring that your workforce receive regular and updated diversity training can help to demonstrate that the organisation took all reasonable steps as an employer to prevent employees from committing the particular discriminatory act and/or discriminatory acts generally. Annual training is considered the best practice approach to take to ensure employees are regularly reminded of the impact of discriminatory behaviour and what the organisation’s expectations are. We would also recommend quizzing your workforce afterwards to ensure that the training has really been listened too and understood.
We appreciate that arranging and providing training can be a time-consuming process and as such, we have prepared a ready-made training package to help you deliver high quality training quickly, effectively and conveniently.
The key features of our training are:
- You will receive a 25 minute pre-recorded training video
- The recording can be watched at your employee’s convenience (and can also be used for new starters who start later on)
- You will also receive a quiz to test employees to ensure they have attended and understood the session which can be kept on their personnel files
Our convenient equality training package has been produced by equality law experts and is right up to date with the latest requirements and law.
We also have other packages that provide additional elements, and we can tailor the training further to your needs. Please do get in touch with us for further details if this is of interest.
In addition, if you would like to discuss the Vento bands or would be interested in getting some advice on discrimination claims generally, please contact our Employment Team today who would be happy to assist.