What price injured feelings
I mentioned last week a recent case in which a young woman whose boss made a pass at her, received £1,000 as compensation for her injured feelings. I suggested that Ms Walker’s award might have been higher were it not for the fact that the boss who propositioned her was a woman.
However, leaving aside that particular question, the case is interesting in that it appears to buck the current trend for employment tribunals to award successful claimants large sums of money in compensation under the heading “injury to feelings”.
This type of compensation is only available in discrimination cases and some might argue that if a person has suffered, for example, sexual or racial discrimination, the employer should expect to pay a suitable amount of compensation. The question then is what is a suitable level of compensation.
The guidelines provided by the court say that compensation for injury to feelings falls within one of three bands. The lowest band, which is supposed to be compensation for minor or one-off incidents, gives rise to an award of £500 - £5000. Therefore, for example, a one-off sexist or racist comment made over the telephone could be worth up to £5000. That’s an expensive telephone call!
The next band up is for awards of £5000 - £15000 and the court has not really given examples of when these awards should be used. The court has said that the middle band is for serious cases that do not merit the higher band award.
The higher band is supposed to be used for cases where there has been a lengthy campaign of harassment or something similar and allows awards of £15,000 to £25,000 in compensation for injury to feelings. Finally, Tribunals can award more than £25,000 in truly exceptional cases.
In the model case mentioned above, there were a couple of relatively minor incidents and the court found this fell within the lowest band and awarded £1,000. However, Tribunals are not usually quite so miserly when it comes to assessing injury to feelings, as some of the following cases show.
In one case, a black employee was threatened by his co-workers and one of them commented that he would “get someone to put him back in his cage”. The employee received £6,000 for injury to feelings for this comment.
Recently, a female employee whose less-qualified male colleague was promoted above her was awarded £8,000 for injury to feelings. The woman had complained about her colleague’s promotion and the Tribunal agreed that her concerns had been “dismissed and rubbished”.
Disability discrimination cases often give rise to high injury to feelings awards. For example, an employee who suffered from agoraphobia and was house-bound as a result, was awarded £3,000 for injury to feelings because the company did not consider letting her work from home.
Another high award for injury to feelings in a disability case came after an employee was dismissed whilst on sick leave with clinical depression. The employee was dismissed after a disciplinary investigation found she had been working elsewhere whilst signed off sick. The tribunal concluded that the company had discriminated against the employee because of her depression and she was awarded £10,000 for injury to feelings.
Finally, it’s worth bearing in mind that an injury to feelings award isn’t the only thing that companies need to worry about if they face an employment tribunal claim. Often damages awarded in discrimination cases will be far larger if the employee has left the company because of the discrimination. They will then be entitled to recover their loss of earnings, including future losses if they haven’t found another job. Finally, of course, there are the legal fees to consider! Employers really do need to be aware of the financial risks they face when employees bring discrimination cases.
Published 27/09/2006.
