The Employment appeal Tribunal (EAT) has held in Base Childrenswear Ltd v Otshudi that the tribunal is not limited to making an injury to feelings award within the lowest Vento bracket following a finding of a one-off act of discrimination.
Compensation for injury to feelings is awarded in line with three bands set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police. The lower band is appropriate for less serious cases (e.g. where the act of discrimination is an isolated or one-off occurrence). The middle band is for serious cases which do not merit an award in the highest band, while the top band is for the most serious cases (e.g. where there has been a lengthy campaign of discriminatory harassment).
The claimant alleged seven acts of racial harassment of which the tribunal upheld one (which related to her dismissal). The injury to feelings award made by the tribunal was placed within the middle bracket of Vento at £16,000. The respondent appealed, arguing that the injury to feelings award was made in the wrong Vento bracket as the act of discrimination was a one-off. The EAT held that the Vento bands were not prescriptive and that, although always relevant, whether the act is a one-off or amounted to a course of conduct is not determinative. It will depend on the particular effect of the act on the individual complainant.
Take note: Following the decision in Otshudi, it's clear that the Vento bands are not set in stone. The level of the injury to feelings award and the band in which it falls will be fact and case specific.
This article is taken from HR Law – June 2019
