In successful claims for discrimination and for detrimental treatment after whistle blowing, the Tribunal can award damages for injury to feelings. The level of compensation is set out in bandings which were originally set out in the Vento case.
Injury to Feelings Award – Recent case law
The case of Komeng v Creative Support considered whether the relevant consideration when calculating an injury to feelings award, is the effect of the conduct on the Claimant (rather than the seriousness of the Respondent’s actions).
Mr Komeng had been employed by Creative Support Ltd as a Waking Night Care Worker since June 2011. Following an employment tribunal hearing in February 2018 it was held that Creative Support’s failure to enrol Mr Komeng on a Level 3 NVQ course, in contrast to the way that named comparators of a different race had been treated, constituted unlawful direct race discrimination. Creative Support’s refusal to allow Mr Komeng to have some weekends off, after he asked if other employees could share the burden of weekend working, was also unlawful direct race discrimination.
The tribunal found that working with colleagues with less continuous service who had the Level 3 qualification and did not work every weekend must have caused significant upset and distress. It also noted that he had persevered with his aspirations to obtain better qualifications for several years whilst receiving no support.
In this case, the tribunal had awarded compensation in the lower Vento band in the sum of £8,400. Mr Komeng appealed, arguing that the award was too low.
The EAT upheld the award. The tribunal had not applied the law incorrectly. The consideration to be made was the impact of the act on the Claimant and not the gravity of the Respondent’s actions and this means that it is not only one-off acts that fall within the lower Vento band. The tribunal had fully considered the impact on the Claimant and was entitled to award £8,400.