Injury to feelings and psychiatric injury-New guidance

For many years the court cases have indicated that in discrimination claims it is possible for an individual that has suffered from unlawful discrimination to recover compensation for “injury to feelings.” The case that established this approach to and assessment of compensation for this type of injury gave its name to the original guidelines adopted by the courts and Employment Tribunals, the “Vento” guidelines.

The original guidelines established three bands of compensation for injury to feelings (or psychiatric injury). In the majority of cases the lower band is adopted. This generally equates to the less serious cases, such as those including one-off incidents of unlawful discrimination-such as a single incident involving verbal harassment of a discriminatory kind. There is then a higher level of award for matters that are more serious, but not quite in the bracket of the most serious in nature, and then there are those unusual, particularly serious matters that will attract an award in the highest bracket, the “upper band.”

The Presidents of the Employment Tribunals in England and Wales, and in Scotland, have just published a “Second Addendum” to the 2017 guidance on the assessment of awards for injury to feelings. The guidance was originally published in September 2017. There was a first addendum issued on the 23^rd March 2018. That First Addendum still applies to cases presented at the Employment Tribunal (ie the date the claim was started in the Tribunal) before the 6^th April 2019. The Second Addendum will apply to those cases that have been commenced on or after the 6^th April 2019. The figures set out in the Second Addendum take into account the changes in the RPI (retail price index) released on the 20^th March 2019.

It should be noted that both the President of the Employment Tribunals in England and Wales, and in Scotland have indicated that they are aware of “the shortcomings of the Retail Price Index” as a measure of inflation, but this has become the established means of determining the appropriate adjustments to such awards. Both Presidents have indicated that they will consider any future changes to the measure of inflation used in the Judicial College Guidelines for the Assessment of Personal Injury Cases and the relevant legislation when determining future changes.

For claims presented on or after the 6^th April 2019 the new bands will be:-

£900 to £8,800 for the lower band (ie less serious cases),

£8,800 to £26,300 for the middle band; and

£26,300 to £44,000 for the most serious cases.

Occasionally, and exceptionally, the award may exceed £44,000, but this will only apply in very few exceptionally serious cases. In Scotland a further uplift of 10% may be available and the Employment Tribunals there will be required to explain in their judgment why that uplift should not be applied.

Awards for injury to feelings are not generally available in cases of unfair dismissal, but it should be noted that Employment Tribunals will be expected to consider such awards in discrimination cases. Naturally the main assessment of compensation in discrimination cases remains the assessment of the actual losses that the individual has suffered as a consequence of the discrimination, such as loss of income and benefits. However, the compensation for “injury to feelings” or psychiatric injury will be assessed as being in addition to the actual directly assessed loss of income and benefits that the individual has suffered.

Employment Tribunals generally expect to see some written evidence to support the assessment of compensation for injury to feelings- such as a medical report, and other witness evidence on how the discrimination has affected the individual. A methodical approach to gathering this type of evidence is often overlooked by individuals in discrimination cases, but where such evidence is obtained and produced it does assist the Employment Tribunal in determining the level of award to be made, and may indicate on occasions that an assessment that may normally have fallen in the lower band should actually be assessed in the middle band. This issue does therefore have an impact on the assessment and value of cases. It can be difficult for employers to challenge such evidence if the individual has actually taken the opportunity to obtain relevant medical evidence, and there is often a limit as to how far an individual can be questioned or challenged on the effect that any act of discrimination has affected them. So, whether you are an employer, or an individual involved in a case of discrimination on the Employment Tribunal, the importance and impact of the assessment of compensation for “injury to feelings” or psychiatric injury should not be overlooked.             

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.