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October Employment Bulletin – Injury to feelings

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); a middle band Read more...

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); a middle band (£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, as opposed to the gravity of the discrimination. The EAT highlighted this important distinction in Komeng v Creative Support

The employee won his claim for race discrimination. It was found that 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. This figure equated to two thirds of his net annual salary. The tribunal said that they would have awarded middle band compensation if the training course was likely to have resulting in promotion, to which the employee would have been disappointed in the lack 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. In this case, 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, as  would the injury to feelings award. Stamping out discrimination is the best way to avoid any such dispute.