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Can you afford the cost of workplace Discrimination claim?
The Tribunals and Gender Recognition statistics posted the highest Employment Tribunal award in 2017/18 as an award for race discrimination of £415,227. Our clients can rest assured that they are receiving specialist employment law advice and legal representation, to ensure that they are protected.
The Equality Act 2010 prohibits discrimination based on nine protected characteristics: –
- Religion or belief;
- Gender reassignment;
- Pregnancy and maternity;
- Sexual orientation;
What you may not be aware of is how much you could be faced with paying out in compensation for a judgement of discrimination.
An Employment Tribunal will consider the loss the employee has suffered and unlike in unfair dismissal claims, there is no upper limit on compensation. The Tribunal aim to award the sum of money that puts the employee in the position they would have been had the wrong not have taken place.
Heads of loss include compensation for both ‘Financial loss’ and ‘injury to feelings’ (amongst other awards*). Whilst both heads of loss can prove extremely costly, it is often the ‘injury to feelings’ award that hit employer’s pockets the hardest.
Injury to feelings
An employee claiming that they have been discriminated against, contrary to the Equality Act 2010, will almost certainly seek an award to include injury to feelings. This award should bear some similarity to awards in personal injury cases and should not be so high as to amount to a windfall but should not be too low so as to diminish respect for the law.
The leading case for guidance as to how much should be awarded for injury to feelings is Vento v Chief Constable of West Yorkshire Police (No 2)  IRLR 102. This case set three bands of potential awards, depending on the severity of the discriminatory act(s).
For claims issued on or after 6 April 2019, the new Vento bands are as follows:
Lower Band: £900 – £8,800
For less serious cases of discrimination, the injury to feeling award will normally be between £900 and £8,800.
Case example: Dique v South East London Doctors Cooperative Ltd
In the above case, Mr Dique was over 60 and of Indian and Asian origins. After a restructure and deterioration in relationship with his managers and colleagues, Mr Dique raised a grievance citing age and race discrimination. His grievance was not upheld by his employer and he was shortly suspended afterwards for a period of five months, with no explanation of the allegations against him.
A Tribunal found that Mr Dique’s age and race discrimination claims were unfounded, however, it found that his employer, in the way that it had suspended him, had victimised him for the protected act of raising a grievance alleging discrimination.
Middle Band: £8,800 – £26,300
The middle band is for serious cases of discrimination that do not merit an award in the upper band.
Case example: De Souza E Souza v Primark Stores Ltd.
In this case, a transgender woman worked for Primark Oxford Street (West) as a retail assistant. The Tribunal found that Primark were ‘vicariously liable’ for acts of harassment committed against her by her colleagues, which Primark failed to adequately investigate and deal with. Her colleagues would call her “Alexander/Alexendra”, discuss her with reference to “it’s a man’s voice” and told an electrician there were no ladies in the ladies’ staff toilet, despite knowing the claimant was in there. They also stated, “she’s got the devil inside her”.
The claimant was constructively dismissed.
(increased by 25% for failure to follow ACAS code + lost earnings)
Upper Band: £26,300 – £44,000
This is for the most serious cases of discrimination, such as a lengthy campaign of discrimination and harassment.
Case example: Boswell v Ministry of Defence.
In this marriage discrimination case, Mr Boswell, a naval officer married to another member of the armed forces, was posted to Bristol. His wife was posted to Birmingham. The accommodation provided to staff by the MoD is determined strictly based on marital status. If Mr Boswell had been unmarried, he would have had single accommodation, for approximately £100 per month. However, as he was married, he was only entitled to family accommodation for £430 per month, despite living there alone. Mr Boswell complained that this was discrimination, which led to disciplinary proceedings against him.
The Tribunal found Mr Boswell was directly discriminated against on the grounds of the protected characteristic of marriage.
Award: £25,000 including aggravated damages
Although the top of the upper band is currently £44,000 for claims on or after 6 April 2019, the Employment Tribunal have jurisdiction to award over £44,000 in exceptional cases of discrimination.
£44,000+ (no limit)
Other ‘heads of loss’
*The awards in Discrimination are by no means limited to financial loss and injury to feelings. Further awards may also include personal injury, aggravated damages and punitive or exemplary damages.
It is also worth noting, should an award be unpaid, further enforcement action and penalties may ensue.
Do not get caught out. Discrimination claims are one of the riskiest and costly claims a business may face from their employees and even prospective employees. It is too easy to say or do the wrong thing with the best intentions and later pay the price.
If you have any concerns or would like advice on this topic or any employment law matter, please call in our 24-hour client advice line: 0330 100 8704 and quote your Client Account Number on all correspondence and telephone calls.