Sex Discrimination: Awards for Injury to Feelings a presentation by WILLIAM NORRIS QC Wednesday 23 rd November 2005
1. This paper looks at the levels of award for injury to feelings where the Claimant has succeeded in establishing that he or she has been the victim of sex discrimination. 2. A tribunal s power to award compensation for acts of sex discrimination is enshrined in the Sex Discrimination Act 1975 (section 65). Where the tribunal considers it just inequitable to do so it may make: an order requiring the Respondent to pay to the Complainant compensation of an amount corresponding to any damages he could have been ordered by a County Court or by a Sheriff Court to pay to the Complainant if the complaint had fallen to be dealt with under section 66. 3. Section 66 of the SDA 1975 sets out the compensation that may be awarded by County or Sheriff Court in cases falling within their jurisdiction. As a result of section 65, this indirectly determines the compensation that an Employment Tribunal may award. So s.66 (1) provides: a claim by any person that another person (a) has committed an act of discrimination against the Claimant which is unlawful by virtue of Part III or 2
(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the Claimant. (c) may be made the subject of civil proceedings in like manner as any other claim in tort. 4. In particular, SDA 1975 s.66 (4) provides:- For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation or injury to feelings whether or not they include compensation under any other head. 5. The starting point for assessing the level of such an award is the decision of the Court of Appeal in the case of Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871. 6. Paragraphs 45 and following, of the decision constitute a useful examination of the appropriate legal principles. Guidance is provided at paragraph 65 and following, and identifies three broad bands of compensation for injury to feelings as distinct from compensation for psychiatric or similar personal injury (emphasis added). 3
7. The three bands are: (i) The top band should normally be between 15,000 and 25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case 1 falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed 25,000. (ii) The middle band of 5,000 and 15,000 should be used for serious cases which do not merit an award in the highest band. (iii) Awards of 500 and 5,000 are appropriate for less serious cases, such as where an act of discrimination is an isolated or one off occurrence. 8. The question for discussion is what set of circumstances, if any, might justify characterisation as the most exceptional case. 9. In the author s own experience, one such case might be thought of as an appropriate example. The Claimant was a teenager, employed (on the second occasion) for just over a year in a fast food restaurant. She was subjected to 1 i.e. The Vento case 4
persistent and disturbing bullying, it was largely verbal and occasional had a physical dimension (such as when she was locked in a freezing room). Whatever other social and personal factors may have contributed to her developing a serious psychiatric condition (albeit the diagnosis was never clear), it remained obvious that her mistreatment at work was at least a contributory factor to her unhappiness and that that unhappiness was at least one reason why she eventually took her own life. Clearly, it is difficult to imagine a more tragic case and for the purposes of the argument, it is necessary to assume that her bullying / discrimination was gender specific. 10. In such a case, the view of the author is that the maximum level of the award could not realistically be put beyond 40,000. The underlying logic of that figure would recognise the 25,000 guideline in Vento and take into account the fact that an award of bereavement to the relatives of a deceased in fatal accident claim is currently fixed at 10,000. 11. Nevertheless, it must be rare indeed to find a case which does exceed what are otherwise guidelines that are broadly consistent with levels of damages in personal injury compensation or at least with the philosophy that underpins them. WILLIAM NORRIS QC 09 November 2005 39 Essex Street London WC2R 3AT 5