Tue, 10 Apr 2018
The term “Vento bands” has been a known short-hand to Employment Law practitioners ever since the case of Vento v Chief Constable of West Yorkshire Police (No2)  IRLR 102 was heard by the Court of Appeal.
That case established three broad bands of compensation in cases in which an award for injury to feelings in discrimination cases was made. The bands were established as £500-£5,000, £5,000-£15,000, and £15,000 to £25,000.
Then came the case of Da’Bell v NSPCC  IRLR 19, in which the EAT decided that 8 years was long enough for claimants to go without the benefit of inflation. The EAT thus increased the bands to £600-£6,000, £6,000-£18,000 and £18,000-£30,000.
These figures were again left untouched for several years, whilst the EAT grappled with whether the Tribunals should fall in line with the County Courts by awarding a 10% uplift on the Vento bands. This debate followed the decision in a civil matter before the Court of Appeal in Simmons v Castle  EWCA Civ 1039. The Court of Appeal held that claims for general damages would be increased by 10% to compensate claimants following the Jackson reforms in personal injury litigation, particularly the removal of success fees under conditional fee agreements.
The issue of the Simmons v Castle uplift was deliberated in the EAT numerous times, including in the case of Beckford v LB Southwark  IRLR 178. In Beckford, Langstaff P considered that the language of the Equality Act 2010 was perfectly clear in stating that awards in the Tribunal should be comparable with those in the County Court.
The Court of Appeal finally gave an authoritative ruling in 2017. The 10% uplift was held to apply to injury to feelings awards in the tribunals – De Souza v Vinci Construction (UK) Ltd  IRLR 844. The Court of Appeal did however invite guidance to be provided from the Presidents of the Employment Tribunals of England and Wales and Scotland on the appropriate awards in injury to feelings cases.
In September last year, that Presidential Guidance was published. The idea was for awards to reflect changes in inflation that had occurred in recent years. The bands were redefined (with transitional provisions) as £800-£8,400, £8,400-£25,200 and £25,200-£42,000.
Last week, an update was given, which took into account the update in the RPI All Items Index released on 20 March 2018. The new bands are as follows:
Lower band: £900 - £8,600
Middle band: £8,600 - £25,700
Upper band: £25,700 to £42,900
In the most exceptional cases, the upper band limit may be exceeded.
It is understood that the Presidential Guidance will be updated every year to reflect inflation. The exercise of awarding an amount for injury to feelings does however remain an imprecise science, with the Presidents of England and Wales and Scotland recognising the shortcomings of the Retail Prices Index as an accurate measure of inflation.
Another issue for practitioners to bear in mind is the new legislation regarding taxation of injury to feelings awards, enshrined in the Finance (No2) Act 2017, section 5. In short, where the award is connected to a dismissal, it is taxable; where it relates to events pre-termination, there is no tax payable.
It therefore seems that, having been cast in stone for so long, the “Vento Bands” can no longer escape the inevitability of inflation, and practitioners will have to exercise “the little grey cells” in order to keep up with the changes.