April 2022 – Discrimination Claims and Injury to Feelings Compensation

• Sex
• Sexual Orientation
• Race
• Religion or belief
• Gender reassignment
• Age
• Disability
• Pregnancy and maternity
• Marriage and civil partnership

Direct discrimination is rare, as that means treating someone less favourably or dismissing them because of a protected characteristic (PC) (e.g. sacking a woman because she is pregnant) and most employers would just not act in that way. However, employers can be liable for direct discrimination carried out by other employees, which is why it is so important to act quickly to tackle any discrimination in the workplace.

Indirect discrimination is more likely to occur and may be unintentional on the part of the employer. That means putting in place a provision, criterion or practice (PCP) which is less favourable for someone with a PC and which cannot be objectively justified. For example, insisting that customer-facing staff must be clean shaven could disadvantage Muslim men, who may have a beard on religious grounds. An example of a PCP that is likely to be objectively justified (and is therefore not unlawful), is the need for construction workers to be able to climb scaffolding. Clearly that would disadvantage people with a range of physical disabilities, but as there is unlikely to be any alternative way of working that could accommodate such disabilities, it is likely to be lawful.

Harassment is another type of unlawful discrimination. This is unwanted conduct by an employer or their staff, relating to a PC, which has the purpose or effect of violating someone’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for someone with a protected characteristic. That could include “banter” which the recipient finds offensive; sharing or displaying pictures of semi-clad models in the workplace; patronising behaviour relating to sex or age; etc.

Victimisation is also a form of unlawful discrimination, which means treating someone less favourably or dismissing them, because they may be taking action under the Equality Act or supporting someone who is doing so.

However, there is an additional award of injury to feelings that will also apply in discrimination cases. This would also apply in discrimination cases that do not involve dismissal.

The injury to feelings award is intended to compensate the individual for the damage caused emotionally by the act(s) of discrimination – i.e. upset, distress and anxiety. The amount of this award is unlimited and uncapped. In theory, therefore, it could run into millions of pounds. It varies according to the damage caused, so it reflects the seriousness of the act of discrimination. Therefore, where someone had been treated less favourably through a PCP and where the less favourable treatment was inadvertent and quite minor, the compensation may be very low. Whereas, in a case of serious sexual harassment conducted by a senior manager on a low level, vulnerable employee over a protracted period, the compensation is likely to be a lot higher.

Since 2002, tribunals have followed the guidance set out by the Court of Appeal in the case of Vento v Chief Constable of West Yorkshire Police, using a system of bands depending on the damage caused. These are known as the Vento Bands and in recent years have been increased on an annual basis to keep pace with inflation. For claims presented on or after 6th April 2022, the bands are:

• Lower band: £990 to £9,900 (for less serious cases)
• Middle band: £9,900 to £29,600 (for cases that don’t merit an upper band award)
• Upper band: £29,600 to £49,300 (for the most serious cases)

Exceptional cases may exceed the upper limit of £49,300.

Take swift action if you become aware of any conduct that could touch on unlawful discrimination and don’t wait for a formal complaint to be made. If someone acts in a directly discriminatory manner towards a colleague (e.g. using racial or sexual language), then their behaviour is likely to be considered gross misconduct and it would normally be appropriate to dismiss them (having followed a reasonable procedure). If you are aware of someone who has a tendency to act in a manner towards, for example, women or younger staff members, in a manner that could be considered patronising, then step in and deal with it in an informal but firm manner, and explain why it is inappropriate. Such behaviour could amount to harassment. For example, an older male employee who flatters younger female staff about their appearance in a manner that may make them feel uncomfortable.

Review any policies, criteria or practices you have to check if they may have an adverse impact on any particular groups of staff, to try to avoid inadvertent indirect discrimination.

Consult staff whenever considering introducing new policies or working practices, to try to ensure you do not introduce any that may be indirectly discriminatory.

Contact us for advice if you receive any complaints of discrimination so we can help you address them in a manner that may resolve the issue and help avoid a claim.

• to £9.50 per hour (from £8.91) for workers aged 23 and over (+ 6.6%)
• to £9.18 per hour (from £8.36) for workers aged 21 to 22 (+ 9.8%)
• to £6.83 per hour (from £6.56) for workers aged 18 to 20 (+ 4.1%)
• to £4.81 per hour (from £4.62) for workers aged 16 and 17 (+ 4.1%)
• to £4.81 per hour (from £4.30) for apprentices under 19 and those over 19 in their first year* (+ 11.9%)

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.