Hurt feelings

Photo by Luis Galvez on Unsplash

In Chapter 7 of Introductory Scots Law, I discuss the issue of injury or hurt to feelings in discrimination cases.

In certain situations, Employment Tribunals may increase any award of compensation made to a successful claimant and interest may be payable on this sum in terms the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (which were amended by the Employment Tribunals (Interest on Awards in Discrimination Cases)(Amendment) Regulations 2013). Increased awards will be much more likely in cases where the Employment Tribunal is convinced that not only has the claimant suffered discrimination, but injury to feelings.

The Scottish civil courts will also have the right to include an injury to feelings element in successful legal actions brought by the claimant. Significantly, an injury to feelings element cannot generally be factored into equal pay claims unless such an action is brought under the sex discrimination heading in Section 71 of the Equality Act 2010.

In Vento v Chief Constable of West Yorkshire Police (2002) compensation limits of £15–25,000  were laid down in situations where injury to feelings was involved in cases involving sex and race discrimination. In Sturdy v Leeds Teaching Hospitals NHS Trust 14th and 15th April 2009 the Employment Tribunal decided that, since Vento had been decided in 2003, a higher rate of inflation had to be considered hence the increased award made to a victim of age discrimination.

These awards for injury or hurt feelings have now become known as the Vento Guidelines and in Da’Bell v National Society for the Prevention of Cruelty to Children (2009), the Employment Appeal Tribunal (sitting for England and Wales) brought them into line with inflation.

Since Da’Bell, the Vento guidelines are usually updated annually in line with inflation.

The current bands or scales (from 6 April 2019) are:

♦    £900 to £8,800 for the lower band 

♦    £8,800 to £26,300 for the middle band 

♦    £26,300 to £44,000 for the top band 

As the Equality and Human Rights Commission has noted in its guidance: “How to work out the value of a discrimination claim“, the bands give Courts and Tribunals the necessary flexibility (and discretion) to fix the appropriate amount of compensation in each case.

The application of the Vento Guidelines

How do Courts and Tribunals apply the Guidelines in practice? The Equality and Human Rights Commission (again) provides very sage advice in this regard by highlighting a Sheriff Court decision which involved unlawful less favourable treatment by a service provider.

In Purves v Joydisc Ltd [2003] SLT (Sh Ct) 64, the Sheriff awarded £1,000 in compensation to a blind man who was not permitted to bring his guide dog into a restaurant. Admittedly, the Commission does stress that this was a one-off incident and the rebuff to the victim and his guide dog was communicated via telephone – thus lessening the potential embarrassment or humiliation suffered.

The Commission then goes on to note that the Sheriff made a number of comments in relation to the case:

  • The discrimination will be considered less serious where it did not happen in a public place or in the presence of the disabled person (in this case he was told about it by a friend).
  • An apology will usually be the most effective way of mitigating the seriousness of the discrimination. In the Purves case, no explanation or apology had ever been offered.
  • The award is compensatory without being punitive; it bears a broad general similarity to the range of awards in personal injury cases.
  • It should not be so low as to diminish respect for the policy of the legislation.

The Commission does issue a number of caveats in relation to the practical consequences of the Sheriff’s judgement: ” the Purves case was specifically a disability case, and was decided before the Vento case … [but] it remains a useful tool for quantification.”

The real consequences of injury to feelings

Several months ago, I was reflecting on the reality of injury to feelings in discrimination cases when discussing the concept with a group of students. Luckily, I was able to provide a practical illustration by referring them to several reports on the BBC. These stories highlighted the experiences of Black university students who had encountered racism during their studies at various UK institutions. One student, Rufaro Chisango, talked about the impact of racism by saying that it made her feel “isolated” and “alone”. It is clear from the testimonies of individuals like Ms Chisango that victims of discrimination can suffer serious psychological damage which could lead to low self worth.

Gareth Lee, the man who took a discrimination claim all the way to the UK Supreme Court (in what became known as the “Gay Cake Row” – Lee v Ashers Baking Company Ltd [2018] UKSC 49) and lost, spoke about feeling like a “second class citizen”.

Links to the stories on the BBC website can be found below:

Black students share experience of racism
https://www.bbc.co.uk/news/av/uk-england-43371952/racism-at-university-black-students-share-their-experiences

Racist abuse made me feel alone
https://www.bbc.co.uk/news/av/uk-england-45683870/woman-racially-abused-while-at-university-speaks-out

Gareth Lee, the man who took the ‘gay cake’ case, reacts to the Supreme Court’s judgement.

Gareth Lee: ‘It made me feel like a second-class citizen’

Rugby star, Gareth Thomas speaks about his experience of hate crime

Conclusion

Victims of  successful discrimination actions (equal pay claims are generally an exception in this regard) may be entitled  to receive an element of compensation which reflects the extent of injury or hurt caused to feelings. The compensation bands or scales have become popularly known as the Vento Guidelines and are usually updated on an annual basis.

The amount of compensation available to victims of discrimination in respect of injury to feelings should adequately reflect the extent of the less favourable treatment experienced. As we have seen, a one-off incident will probably mean that the lower Vento band is applicable and more serious instances of discrimination will bring the middle and higher bands into operation.

As a parting shot, we shouldn’t forget the very real psychological damage which victims of discrimination can experience.

Copyright Seán J Crossan, 14 February and 11 April 2019

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sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

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