Mon, 09 Jul 2012
By Nabila Mallick
This article takes a look at recent awards for injury to feelings in discrimination cases in the past six months and what gave rise to them.
In Daybell v NSPCC  IRLR 19 EAT updated the guidelines for awarding compensation for injury to feelings set out by the Court of Appeal in Chief Constable of West Yorkshire Police v Vento (No.2) so that the bottom band increased from £5,000 to £6,000; the top of the middle band increased from £15,000 to £18,000; and the top of the higher band increased from £25,000 to £30,000.
The EAT (and Court of Appeal) have often pointed out that disputes about the placement within a band of award is in reality about ‘fact and impression’ (see for example London Borough of Hackney v Sivanandan  IRLR 740) . On the other hand, in Vento, Mummery LJ said ‘In the interests of justice (social and individual), and of predictability of outcome and consistency of treatment of like cases (an important ingredient of Justice) ,this Court should indicate to Employment Tribunals and Practitioners general guidance on the proper level of award for Injury to feelings and other forms of non-pecuniary damage.’ It is always important to consider into which of the Vento bands the case falls into before any discrimination remedies hearing.
Many practitioners complain that it is difficult to work out compensatory awards in respect of injury to feelings in discrimination cases, however recent cases give a very good idea as to the factors which influence such awards. 4 cases are examined below.
Haynes v (1) Neon Digital (Document solutions) Ltd (2) Stevens (3)  ET/1501563/10,
This was a recent case concerning a pregnant employee, who was dismissed on the grounds of redundancy. The Claimant made a claim of unfair dismissal, sex discrimination and pregnancy-related discrimination. In her claim, the Claimant asserted that she had been selected on account of the manager’s general attitude to female employees .The Claimant argued that her workload had increased, not diminished since her pregnancy.
In making its findings, the Tribunal took into account the manager’s attitude to pregnant women. For instance, the Tribunal found that the manager had been angry at one employee for not telling him that the Claimant was pregnant, that he expressed hope that another pregnant employee ‘might fall down the stairs’ and that he also gave instructions to the Claimant ‘to get rid’ of a recently married employee ‘before she became pregnant’ . The Tribunal also found that the manager had made remarks that were linked to the Claimant’s breasts and potential pregnancy which amounted to sexual harassment. The Tribunal then considered it a remarkable coincidence that the manager learnt that the Claimant was pregnant two weeks before the decision to make her redundant. The Tribunal also considered it an allegation of direct sex discrimination that the Claimant was told ‘to grow a pair of balls’.
In making an award for Injury to feelings, the Tribunal acknowledged: ‘ Though one cannot understate the significance of being dismissed because one is pregnant, the purpose of compensation is to compensate for hurt caused to Mrs Haynes, not our personal Indignation.’ The Tribunal looked at all the circumstances: based on the unpleasant circumstances in which the Claimant worked and the subsequent decision of dismissal it made an award in the middle band of £11,000. A separate award was not made for psychiatric injury.
Crisp v Iceland Frozen Foods Ltd  EqLR 618
This case concerned a Claimant with a disability – mental Impairment. She was employed part time by the Respondent , a large retail organization, as a cashier.. The Claimant had been dismissed on the grounds of capability and then reinstated on appeal. The Claimant claimed disability discrimination and constructive dismissal. Her employer was aware that she had a disability – depression, which can manifest itself as panic attacks.
In June 2011, the Claimant became seriously ill. She submitted sickness certificates to her employer, but these did not all reach the appropriate manager. She was then subjected to a disciplinary hearing but she did not receive the relevant letters because of a change of address. She was dismissed in her absence. The Claimant appealed the decision. Prior to the appeal hearing, the Claimant asked if she could be accompanied by her husband, to assist her with her panic attacks. This was refused, as the Respondent’s policy allowed only a colleague or union representative to attend. Further prior to appeal hearing, a message had been accidentally recorded on the Claimant’s home answerphone where members of the appeal panel were overheard making fun of her.
At the appeal, the Claimant raised the issue of recording, but nothing was done by the appeal panel to address it. Subsequently, the Claimant was told that her appeal was upheld . However, the Claimant did not wish to return to work for the employer. She claimed constructive unfair dismissal and disability discrimination. The Tribunal found that the recorded conversation because it was making fun of the Claimant’s disability amounted disability-related harassment. It also found that the ‘PCP’ of being accompanied to the hearing by a Union Rep should have been adjusted to allow her to have her husband present. The Tribunal found that the Claimant had been constructively dismissed .Claimant was awarded middle band £11,000 for injury to feelings. A separate award was not made for psychiatric Injury.
Michalak –v- The Mid Yorkshire Hospitals NHS Trust and others Case No: 1810815/2008
The case concerned a Claimant who had been dismissed on the grounds of misconduct and capability, claimed unfair Dismissal, pregnancy related discrimination, sex and ,race discrimination ,as well as victimization. Dr Michalak of Polish nationality trained as a Doctor in Poland, was employed by the Respondent from 2002.At the end of 2002, at the age of 43, she announced to her employers that she was pregnant with her first baby. She was the first consultant at the hospital to take maternity leave. In 2003- 2006.However, after her return from Maternity Leave she was concerned by disparity of treatment with other doctors, such as a salary increase. Consequentially, she took a number of grievances regarding her treatment since she had announced her pregnancy. However, the Claimant was subjected to disciplinary proceedings due to a number of complaints made against her. She was suspended in January 2006 for an unusually long period. In July 2008, she was dismissed from her post.
The Tribunal found that from the time the Claimant returned from her maternity leave, there was a campaign to ‘get rid ‘of her. There were secret meeting amongst other consultants to work out a strategy to ‘get rid of her’. There were information gathering exercise whereby staff and patients complaints were obtained. Junior Staff were encouraged to make unsubstantiated complaints. The Tribunal found that the Claimant had been dismissed because of her sex and race. They did so on the basis that
(i) there was evidence of a strategy "clearly directly relates back to the claimant having become pregnant, having gone on maternity leave, having complained about discrimination” and,
(ii) the Claimants ethnicity played a part in her treatment. There had been repeated reference to the Claimant's ethnic origins and the "cultural issues" .The Tribunal was surprised that, although around 50% of the Respondent's consultant body came from ethnic minority backgrounds, the secret meetings, the disciplinary and appeal panels all comprised of white British people.
The Claimant was awarded a,top end award of £30,000 for injury to feelings to reflect the unpleasantness, anxiety, worry and fear ‘ caused by all the experiences the Claimant suffered since informing the Respondent of her pregnancy . A separate award was made of £56,000 based on a joint psychiatric report. The Tribunal found that in this case the psychiatric injury was not merely an extension of the Injury to feelings.
Brown -v- Central Manchester University NHS Foundation Trust case no; 2407264/97
The Respondent dismissed the Claimant on the grounds of Capability. The Claimant brought a claim for Unfair Dismissal and Race Discrimination. Mr Brown was the first Black Divisional Director of the Clinical and Scientific Services (CSS). He enjoyed a good working relationship with his line manager until she had performance concerns. The Trust had a capability policy that required performance issues to be addressed informally at first and then formally. However, the Claimant’s line Manager sent the Claimant a letter in March 2007 informing him that his job was at risk. This resulted in stress and the Claimant suffered from suicidal thoughts. He went off sick in June 2007, when disciplinary proceedings began. Mr Brown submitted a grievance at this time, complaining of race discrimination. He was subsequently suspended and then dismissed following investigation and disciplinary hearings.
The Tribunal found whilst the concerns over performance were genuine, the Claimant’s line manager had ignored Trusts policy and procedures, for which there had been no explanation. The Tribunal found that the investigation into the Claimant’s grievance to be cursory. The Claimant had been treated less favourably.
The Tribunal found that statistics had been presented to the Respondent in the course of the disciplinary/grievance process, "showing a pattern, year-on-year, of black employees being more likely to be subject to dismissal than white employees". The Tribunal found that the Respondent did not address "these extremely worrying statistics”, even though it had been alerted to the fact two to three years earlier by its Equality and Diversity Officer. The Tribunal concluded: "It is clear that the Trust, as it is required to do so, collates statistics, but has put no effective system in place to actually monitor them, to identify any possible underlying problems and to address them." This was relevant as the Claimant had been accused during the grievance procedure of making ‘ scurrilous and opportunistic’ claims.
The Tribunal considered the psychiatric report of the Claimant’s fragile mental state and that he suffered from severe depression, which would continue for two/ three years. The Tribunal awarded the Claimant £20,000 for injury to feelings. A further award of £13,000 was made based on psychiatric report for psychiatric Injury, the Tribunal having found that the psychiatric Injury was not an extension of the Injury to feelings.
The cases above demonstrate that for a top band award to be made, there must be evidence of serious disparity of treatment or a long sustained campaign of discrimination whereas middle bands awards are more appropriate for serious acts of discrimination but where there is no lengthy campaign against the Claimant.
Whilst of course there no fixed formula, what is emerging is some form of consistency . This is reflected by the fact that despite an increase in the bands to reflect the rate of inflation since Vento, the average award in 2011 was between £5000- £6000 for Injury to feelings.