Here is a mildly disconcerting decision issued by the Employment Appeal Tribunal about the calculation of compensation for injury to feelings in discrimination cases. Mr Komeng was found by the ET to have been serially and directly discriminated against by his employer, Creative Support Limited, in relation to opportunities for personal and professional development and the obligation to work at weekends. Despite this, he had soldiered on and remained employed by CSL up to and through the ET and EAT hearings.

Mr Komeng’s injury to feelings was assessed by the ET as at the top of the lowest Vento band, which by the terms of that case is reserved for “less serious cases, such as where the act of discrimination is an isolated or one-off occurrence“. That was worth £8,400 at the time, though interest and inflation lifted this to a little shy of £13,000. Komeng appealed – how could a number of years’ direct discrimination against him (so hardly “isolated or one-off“) only merit a bottom-band award?

The EAT considered its ability to intervene in injured feeling cases to be limited. It was the ET which had heard the evidence about the distress caused and was so best placed to decide the appropriate level of compensation. Within a Vento band, that was a matter for the ET’s discretion and so practically unchallengeable. However, if the ET had picked the wrong band altogether, then that became an error of law and the EAT could overturn it.

So had the original Tribunal gone for too low a Vento band for Mr Komeng?

The EAT concluded with obvious reluctance (the traditional EAT phrase to look out for here is “other Tribunals might have reached a different decision”) that it could not overturn the Tribunal’s view. The problem was that Komeng (who had been representing himself) had “not given evidence to suggest that he had been as adversely affected as many others might have been“. He had not gone off with stress, not been ill, not resigned and not argued that denial of the self-development opportunities had effectively stunted his career at CSL and hence also his earnings and his employment prospects elsewhere. That latter argument was almost certainly true, but it was not up to the EAT to make assumptions of that sort when the evidence to support it had not been given.

The EAT also took the view that the Vento bands were flexible. There was no fixed rule that only conduct which was isolated or one-off could fall within the bottom band, any more than that a single incident could not find itself within the upper bands if it were serious enough.

So why “disconcerting”? Because the EAT made it clear that the focus of the Tribunal assessing injured feelings compensation should be on “the actual injury suffered by the Claimant and not the gravity of the acts of the Respondent“. What that means is that the ETs must seemingly place a premium on the degree of upset claimed by the Claimant, regardless of whether it is in any way proportionate to the act of discrimination reacted to. Conversely, it means that “brave soldiers” like Mr Komeng are compensated to a much lesser extent than someone who throws themselves into a flat spin of histrionic over-reaction over something relatively trivial. It rewards the wrong behaviours and penalises those who do their best to get on with things.

What defences does the employer have to this potential arms-race of outrage? Not many. It can try to argue that it was not reasonable for the conduct relied by the Claimant to have had the distressing effect necessary for it to constitute harassment in the first place, but if the Claimant gets over that hurdle (which he/she almost always will), what then? It can argue that the Claimant’s alleged distress is exaggerated or invented to some extent, but that entails giving evidence about what is going on in someone else’s head, which is rarely a happy place to be. In addition, that risks compounding the upset – not only did you discriminate against me, but now you accuse me in a public forum of lying about it too. It does not appear from Komeng that there is much mileage in any argument that objectively the discriminatory behaviours could only justify a certain maximum level of upset, any more than Komeng succeeded in showing that they had to justify a minimum.

Of course, the Tribunals will have their own views about how far the level of distress claimed is genuine and proportionate, and no doubt there is some conscious or unconscious adjustment to reflect that. No doubt also there are arguments still to be made that you cannot divorce entirely the subjective upset claimed from the objective reality of the treatment received. After all, Vento’s own description of the lower band is based on the act (“isolated or one-off”) and not on the emotional impact of it. Pending those arguments, this decision seems squarely to favour the Claimants who make the most noise and the least effort to deal with discrimination in a manner proportionate to all the rest of the disappointments and reversals which working life confronts us with from time to time.