Should an Isolated Act of Discrimination Be Placed in the Lower Vento Band?
No, held the tribunal in a recent case...
Base Childrenswear Ltd v Otshudi
Miss Otshudi was employed by Base Childrenswear for only three months when she was summarily dismissed, ostensibly on the grounds of redundancy.
She pursued a claim complaining of six acts of racial harassment during the course of her employment. The claims were dismissed on the basis that they were brought out of time. The tribunal, however, upheld Miss Otshudi's further complaint of racial harassment in respect of her dismissal.
It was evident that Miss Otshudi's dismissal was unexpected, and the Employment Tribunal (ET) was not convinced by the explanation put forward by Base Childrenswear, which varied from redundancy to misconduct.
The ET also considered both parties' conduct following the dismissal. Particularly, Base Childrenswear's failure to respond to Miss Otshudi's letter of grievance and appeal against her dismissal.
The ET made awards for injury to feelings, aggravated damages, and personal injury, plus a 25% uplift in respect of Base Childrenswear's failure to comply with the ACAS Code.
Looking solely at the question of Miss Otshudi's injury to feelings arising from the dismissal, the ET concluded that this fell within the middle Vento band and made an award of £16,000.
Base Childrenswear appealed on the basis that the ET had placed the injury to feelings award in the wrong Vento band. They contested that since the act of discrimination was a one-off, placing the award in the middle band was excessive. They argued that the award should be restricted to the lower band. They also challenged that there was an overlap between the different awards which resulted in an element of double-recovery.
The Appeal
The Employment Appeal Tribunal (EAT) dismissed all but one ground of appeal. The EAT said that where an ET finds unlawful discrimination connected to only an isolated act, it does not automatically follow that the ET is required to assess the award for injury to feelings within the lowest Vento band.
The EAT further held that each assessment is fact and case specific - and cases involving one-off acts of discrimination could well be awarded within the middle or higher Vento bands if the impact on the individual warranted such an award.
With regards to the approach an ET should adopt when making awards for injury to feelings; the EAT noted that, "the question for the ET must always be, what particular effect did the discriminatory act have on this individual complainant?"
What Does It Mean for Employers?
This case is a reminder that the Vento bands are not prescriptive and isolated events can potentially be more serious or have the same impact as a course of conduct.
This case also illustrates the importance of complying with the ACAS Code when dismissing employees (even with short service) as well as in respect of post-termination grievances.