When calculating injury to feelings in order to decide on the level of an award to a claimant, tribunals have to decide which of the “Vento bands” are appropriate. In Komeng v Creative Support, the Employment Appeal Tribunal (EAT) held that there is no hard and fast rule that the lowest band should only be applied in situations where the act of discrimination or harassment was a one-off.

Basic facts

Mr Komeng, who describes himself as black African, worked initially for his employer as a waking night worker. After two and a half years, he moved to a project looking after vulnerable adults with mental and physical health needs.

As he wanted to develop himself professionally, he asked to be enrolled on a Level 3 NVQ course at his supervision sessions which commenced after he started working for Creative Support. However, his employer failed to follow up his requests. In addition they refused to allow him any weekends off, despite the fact that he had to work with colleagues with less continuous service who had the Level 3 qualification and did not work every weekend.

He brought a claim of unlawful race discrimination.

Tribunal decision

The tribunal held that he had been discriminated against on the basis of his race.

In order to calculate the amount of compensation for injury to feelings, it referred to the Vento bands (see below). As Mr Komeng had suffered significant upset and distress, the tribunal held that he should be awarded compensation of £8,400 which was at the top end of the lower band.

Mr Komeng appealed on three grounds. The first was that the tribunal should have assessed his award as being in the middle of the three bands; secondly, it should have applied a ten per cent uplift in accordance with the decision of the Court of Appeal in Simmons v Castle (weekly LELR 302); and thirdly, it should have awarded him interest on his compensation.

Vento bands

At the time of the judgement, the compensation levels within the bands were as follows:

  • the lowest band, which is between £900 and £8,600, generally applies to cases which involve a one-off act of discrimination or an isolated incident.
  • The middle band (£8,600 to £25,700) applies to more serious cases than the lowest band, but which do not merit an award in the highest band.
  • The top band (£25,700 to £42,900) applies to the most serious cases, for instance, where the discrimination has gone on for a long time.

EAT decision

The EAT allowed the appeal in part. Firstly it held that the tribunal was right to place the award of injury to feelings compensation in the lower of the Vento bands, as there was no hard and fast rule that the lowest band should only be used for one-off acts. Instead, the role of tribunals was to consider the effect of the unlawful racially discriminatory treatment on the claimant, not the gravity of the employer’s actions, which it had done in this case.

However, it also held that the tribunal had failed to apply the Simmons and Castle uplift as well as interest on the compensation. The original award was therefore quashed and substituted with the correct total figure of £12,757.