EAT finds Tribunal erred in assessing injury to feelings award

Injury to feelings awards in discrimination claims

Injury to feelings awards in discrimination cases are intended to reflect the emotional impact of the unlawful treatment. These awards aim to acknowledge the personal impact of discrimination, separate from financial loss or other remedies.

The Vento bands provide a framework for calculating injury to feelings and psychiatric injury in discrimination and whistleblowing claims. The guidelines divide awards into three bands which relate to the seriousness of the case. This helps ensure consistency across injury to feelings awards.

Factual background

In the case of Shakil v Samsons Ltd, the claimant was employed by the respondent for approximately six months before taking time off due to morning sickness. In response to her pregnancy-related illness, the respondent reduced her working hours without notice, criticised her capability and conduct, placed her at high risk for redundancy, and eventually dismissed her one month before her maternity leave was due to commence.

The claimant brought a claim for pregnancy discrimination, which was upheld by the Employment Tribunal. The Tribunal determined that the respondent's actions were directly linked to the claimant's pregnancy-related illness and that the purported redundancy was a sham. The Tribunal awarded the claimant £5,000 for injury to feelings but failed to reference the well-established Vento guidelines used to determine compensation in such cases.

The claimant appealed, arguing that the award was inadequate, and that the Tribunal had erred in its assessment by omitting crucial considerations.

EAT decision

The EAT criticised the Tribunal’s failure to properly apply the Vento guidelines. It found that the Tribunal did not engage with the claimant’s evidence, make findings of fact about her emotional distress, or reference the relevant legal principles. The EAT also noted the absence of justification for placing the award at £5,000, which was inadequate given the circumstances.

While the EAT had the power to substitute its own award, it remitted the case to a different Tribunal because the original judgment lacked sufficient findings of fact to allow reassessment.

Learning points for employers

This case highlights the risks of mishandling pregnancy-related issues in the workplace. Employers should take particular care when managing absences, redundancy, or performance concerns involving pregnant employees. Ensure that any decisions about working hours, performance concerns, or redundancy are based on objective, non-discriminatory factors and are clearly documented. In this case, the respondent’s failure to justify its actions contributed significantly to the findings against it.

Pregnancy discrimination claims can result in substantial injury to feelings awards, particularly where the conduct involves ongoing or serious mistreatment. Employers should remain mindful of this risk and seek early advice if issues arise.

For more information or advice, please contact Georgia Blesson in our Employment team on  07340 631 557, or complete the form below.