Increase in discrimination awards
What are we protected from?
Employment legislation prohibits work-related discrimination if the act complained of is linked with one or more of the nine "protected characteristics". The specific characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The scope of the protection is not limited to "employees" and extends to those more readily classed as a "worker" - so the protection is far reaching and will apply to recruitment practices and generally, the treatment of individuals in the work place.
What compensation can be awarded?
Unlike ordinary unfair dismissal claims, where all that can be sought is compensation for financial loss (for example, loss of earnings, benefits, pension loss etc.), an Employment Tribunal can also award an employee, who has suffered discrimination, compensation for injured feelings. This is a completely separate and distinct award from compensation for financial loss.
Compensation for discrimination claims is uncapped and more often than not an intimidating factor for employers who find themselves at the other end of a claim. The stories making the headlines usually involve individuals who are awarded a six figure sum by the Employment Tribunal however, it would be wrong to assume that an award at that level is the norm.
Despite their being no cap for discrimination claims, there is a well established scale, known as the Vento scale, which practitioners and advisers commonly use to quantify any potential discrimination claim. The Vento scale includes a Lower, Middle and Upper band of award for discrimination claims and has been around for nearly 15 years.
The Presidents of both the Employment Tribunal in Scotland and England and Wales have now confirmed the most recent increases to the Vento scale as part of their response to the consultation on the proposed changes to Employment Tribunal awards for injury to feelings and psychiatric injury.
As of yesterday, individuals claiming that they have suffered discrimination in the work place can claim within the following as injury to feelings:
- Lower Band - £800 - £8,400 - For less serious cases of discrimination
- Middle Band - £8,400 - £25,200 - For cases that do not merit an award in the upper band
- Upper Band - £25,200 - £42,000 - For the most serious cases of discrimination
There is no real guidance as to what circumstance would necessarily tip the scales from one band to another - that will very much be a matter for the Employment Tribunal to consider and decide .
The Vento scale was the result of a Court of Appeal case in 2003 (in England and Wales) and though not binding in Scotland, it has been relied upon and considered persuasive authority by many in Scotland. That position is unlikely to change - there is no real appetite or justification for Scottish awards for injury to feelings being lower than those in England and Wales. Naturally, the level of compensation should reflect the level of injury suffered and not where a particular individual lives.
The Vento scale involves significant sums and employers can help protect against the risk of discrimination claims by employing good working practices, providing training on equality and diversity and ensuring their policies and procedures are up to date. If your practices, policies and procedures have not been reviewed or updated for some time or training has not been delivered in respect of equality and diversity, it would be a matter worth seeing to and managing sooner rather than later.
Joint Presidential Guidance is expected to be published today in respect of the new increases, so there may be further comment on the matter once reviewed but in any event, employers should ensure that they do all that they can to provide a neutral, diverse and fair working environment.
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