Stubbs v Chief Constable of Lincolnshire Police (ET unreported)
ICTS ( UK) v Tchoula [2000] IRLR 643
Martin v Unilever UK Central Resources Ltd (1.3.1999 case no 64272/ 95 ET)
Akkerman v City Centre Restaurants (UK) Ltd (ET unreported)
Wilson v Tesco Stores v Abrahams (EAT 12.1.00 unreported)
Hussain v Mann, Kellock, and JCT (ET unreported)
Sheriff v Klyne Tugs (Lowestoft) Ltd LELR 40
Calculating compensation can be an imprecise science and one of the best guides to what particular forms of discrimination are worth can be gleaned from previous cases. The most up-to-date summary of awards by employment tribunals in discrimination cases was published in the September Equal Opportunities Review. It covers 1999 awards. The summary provides a useful picture of general trends in awards and differences across types of discrimination. Negotiated settlements are not included in the statistics.
Compensation increased by at least 30% in all discrimination areas and by 65% in race cases. Tribunals only awarded compensation in 300 discrimination cases and 200 of these were sex discrimination cases. However more compensation was awarded in race and disability cases than sex discrimination.
More useful information is suggested by the average awards which in all categories were under £10,000. This includes both injury to feelings and loss of earnings awards. In race and disability areas the average award was £9,948 and £9,981 respectively but in sex discrimination claims it was £7,208. This reflects injury to feelings average awards which for race was near £5,000 but for each of sex and disability the average award was under £4,000.
A closer look at the range of awards show compensation ranged from a paltry £100 to a high of £182,247 in sex discrimination claims. Awards in race and disability were between these perameters. Big awards are rare, in 1999 only 25% of race and disability claims are for more than £10,000 and in sex discrimination claims the proportion is less, at 20%.
The highest award in 1999 at £182,247 was in Stubbs v Chief Constable of Lincolnshire Police. This was a sexual harassment case where significant injury to feelings amounting to long term mental distress combined with loss of career, pension and a higher than average salary. This case reflects the rule that the larger awards are calculated by the multiplication of a reasonably high salary and a significant number of years where this loss will continue. The loss of earnings claim is the most significant part of the total compensation in high value cases.
But in the average award the injury to feelings sum is as much as the future or immediate loss. In race and sex they contribute to over 50% of the average award. This reflects the fact that claimants may be able to work again fairly soon after a discriminatory dismissal. Injury to feelings is therefore an important element in calculating loss.
To date injury to feelings has been informed guesswork. But there is now an established practice of bracketing awards and reflecting (to some extent at least) personal injury awards.
In ICTS ( UK) v Tchoula the EAT set down a general rule that less serious injury should be compensated at £10,000 or below. The EAT regarded an award of £27,000 as being excessive for temporary injury to feelings or one where the campaign of harassment was not over a long period of time.
£10,000 seems to be the top end of the lower bracket of non personal injury type awards. In Tchoula it needs to be borne in mind that even though there was not any serious personal injury there was aggravated damage and the award was high because of victimisation.
While the top of the lower bracket at £10,000 seems clear enough, placing a case within the bracket is more difficult. In Martin v Unilever UK Central Resources Ltd a tribunal awarded £1,500 for "minor psychiatric damage" reflecting Judicial Studies Board Guidelines for personal injury awards. In Akkerman v City Centre Restaurants (UK) Ltd a failure to carry out a reasonable adjustment in a DDA case of decreasing hours of work was also awarded at £1,500. Yet in Wilson v Tesco Stores v Abrahams the EAT ruled that an award for £5,500 was correct for a racist comment and discrimination. A security guard employed by the respondent company had referred to the applicant as "you lot". The tribunal found it was a racist reference intended for the applicant. The EAT rejected the employer's argument that the award should be lower because of personal injury guidelines which suggested a sum nearer £3,000. The appeal tribunal were content that the award was in the right bracket and would not interfere with the tribunal findings on the exact amount.
The EAT were both legally and politically right to reject a solely personal injury approach. Other elements make up an injury to feelings award - vulnerability or youth in harassment cases, loss of confidence, despair, loss of career or opportunity to work all contribute to loss. These are by definition less tangible but can be especially important in the claims for failure to promote or interview or shortlist for a post and exclusion from career opportunities where personal injury and mental distress may not be provable.
Injury to feelings awards were also increased in Hussain v Mann, Kellock, and JCT where the employer victimised the applicant and aggravated the situation. This included suggesting that a tribunal claim was vexatious and making unfounded counter allegations against the applicant. There a £10,000 injury to feelings award was multiplied by three for a total award of £30,000. The importance of adding victimisation claims in harassment or discrimination cases cannot be overestimated.
On the other hand, claims in discrimination for personal injury awards must be made if there has been physical or mental injury because of the discrimination - Sheriff v Klyne Tugs (Lowestoft) Ltd. In these cases the JSB guidelines ought to be helpful. It is beneficial to argue for a separate award for the personal injury so that both personal injury and the injury to feelings elements are reflected in the total award.
In the sexual harassment case of Stubbs v Chief Constable of Lincolnshire Police a moderate psychiatric injury attracted an award for £15,000. However it is important to note the impact of her illness which affected her relationship with parents and partner, and her future career. It is a useful reminder of the importance of having the evidence to show how an applicant has been affected by the discrimination.
There is a clear demarcation of £10,000 in injury to feelings awards. Personal injury or sustained harassment cases take awards above this level with awards above £15,000 for moderate psychiatric damage. Below £10,000 advisers should stay away from close comparisons with personal injury cases and look at other issues such sustained harassment, vulnerability, loss of confidence and loss of career or victimisation/aggravation to increase the award. The average awards of around £4-5,000 are an indication but awards of £1,500 are still being made for cases of discrimination.