If an employee wins a discrimination claim, the employment tribunal will award compensation for injury to feelings. There are three bands: top band for the most serious cases (currently £26,300 – £44,000); middle band for serious cases not worthy of a top band award (£8,800 – £26,300) and bottom (£900 – £8,800) for less serious cases including one off incidents. The award is based on the effect of the discrimination on the employee, rather than the gravity of the discrimination. The EAT highlighted this important distinction in Komeng v Creative Support.
The employee won his claim for race discrimination. His employer had treated him less favourably than colleagues in relation to training opportunities and weekend work. In assessing compensation, the tribunal said that the treatment must have caused the employee ‘significant upset and distress’. They awarded compensation at the top of the lower band, £8,400. That equated to two thirds of his net annual salary. The tribunal said that they would have awarded middle band compensation if the training course could have resulted in promotion and the employee had been disappointed about that loss of opportunity. However, this argument had not been raised.
The EAT upheld the award. The EAT said the employment tribunal’s job was to assess the impact of the discrimination on the individual employee. All employees are different, and discrimination will affect individuals differently. The EAT noted that the employee had displayed remarkable resilience in the face of the treatment. They said the bottom bracket is not just for one off acts.
This case seems to be a win for employers, with sustained discrimination falling into the bottom bracket for injury to feelings. However, the reason for this level of award was the employee’s resilience, rather than the employer’s actions. The impact on most employees would be greater, and so would the injury to feelings award. Stamping out discrimination is the best way to avoid any such dispute.
Astons Solicitors
November 2019