Through a long and not very relevant series of arguments, the Court of Appeal in De Souza – v – Vinci Construction (UK) Limited has just decided that in effect they are. This is not a surprising conclusion, since otherwise inflation would erode the value of such awards as either proper compensation for the employee or meaningful deterrent for the employer. However, this might be an opportune moment to look at some factors which can militate for or against material injured feelings awards.
Of course, the principal determinant is the nature of the act of discrimination itself. The first real scientific attempt to bring some order to injured feelings compensation was Vento – v – Chief Constable of West Yorkshire Police in 2003. This set out three “Vento” bands of seriousness running from about £500 to around £25,000 for the most serious and prolonged discrimination. In the interim, those parameters have nudged up to around £750-£30,000, and De Souza makes it clear that they are still on the move.
Respondent lawyers are well used to arguments that the impact of even minor acts of discrimination is so earth-shattering for the claimant that nothing less than £30,000 will properly assuage his hurt, but that is very rarely true. Relevant factors will include persistency (especially in the face of requests to stop), evident intention, any dishonesty in the employer’s conduct, any actual or threatened or physical assault, the relative hierarchical position of victim and perpetrator and the consequences for the employee’s future confidence and employability.
However, once the discriminatory event has happened, there is still an opportunity for HR to make the matter better or worse, since the Employment Tribunal will consider not just the act itself but also the employer’s response to it. Put at its most basic, for example, an act of discriminatory harassment which is then apologised for will probably attract a lesser injured feelings award than one which is not. So assuming that there has been an act of what looks like unlawful discrimination in your business, what might you be able to do, even afterwards, to reduce the company’s exposure?
- As a statement of general principle, do not defend the indefensible – it just adds insult to injury and only makes matters worse. An early admission that the employee’s feelings of hurt and unfairness are justified will itself go a long way towards resolving them.
- Apologise, but do it properly and not grudgingly. “I am sorry if I upset you” sounds sceptical that there was any genuine offence caused [subtext for ET – not only has this company discriminated but now it is accusing the complainant of lying]. On the other hand, “I am sorry that I upset you” sounds very different, especially if said promptly, at least outwardly voluntarily and accompanied by either explanation or retraction. This is why train operator apologies for disrupted services reduce you to such boiling fury – “We apologise for any inconvenience caused” implies that there are times when you really honestly don’t mind (in fact, quite enjoy) being stuck indefinitely at Farringdon with no idea of when you might get home.
- Be seen to investigate discrimination grievances scrupulously fairly, approaching the question with an open mind and not on the basis that it is for you to disprove or discredit what the employee says.
- Maintain appropriate confidentiality around the complaint, involving only those people who need to know by reason of their seniority or actual or alleged involvement in the discrimination. If the employee wishes you not to make any formal enquiry, perhaps for fear of retaliation, make a clear note of this.
- Resist the temptation to assume (and still more so to suggest) that someone who has potentially been discriminated against will necessarily want to leave with a heap of cash – remember that the protected conversations regime does not apply to discrimination cases. Instead, ask early what the employee would ideally want by way of resolution for his treatment. You are not bound by the answer, but it shows that you are taking his concerns and his wellbeing seriously, not merely as the trigger for a process aimed at defending the employer. Initially at least it may only be an apology or a commitment that the conduct will not recur, but by the time you have lawyers on both sides it could well become money and management heads on spikes which would be much harder to give.
- Think carefully before reacting to the discrimination complaint. Should someone be moved or suspended? How do you describe any resulting absence to the party’s colleagues without prejudicing either’s position? What does the complainant want in this respect (not that you are bound by this either)?
- Keep the employee informed of what is going on and why. Nothing fosters suspicion and fear and upset likes weeks or months of silence from your employer on your complaint.
- An employee who is acknowledged to have been discriminated against has no right to require the dismissal of the perpetrator or to know the specifics of what lesser action is taken against him. However, his injury to feelings will certainly be increased if there is no sign that anything at all happened as a result of his complaint. If remedial steps are taken, make sure that the employee knows this promptly.
- In writing, tell those accused of discrimination (whether justifiably or not) that any form of retaliation will be unlawful victimisation, will compound the injury to feelings, perhaps expose them personally to a claim and is potentially also serious misconduct on their part.
Think ahead to possible solutions. Has the employee suffered any financial loss from the discrimination? If so, it ill-behoves a discriminating employer to nickel-and-dime the amount of any financial offer, and that could be reflected in an increased award for non-financial loss. Is this a case where the discrimination is alleged to be deliberate or not? The more positive approach to the latter may be mediation to clear up misunderstandings or communications failures between the parties, so showing a commitment to the employee’s future happiness at work without risking all the reciprocal ill-will which could be generated by formal disciplinary action.