Putting a value on upset, distress and anxiety caused by discrimination in employment has never been a precise science. The so-called Vento bands go some way to assisting Employment Tribunals determine levels of compensation for injury to feelings but how do you know whether compensation would be in the lower, middle or upper bands. Where are the lines crossed?
A recent case in the Employment Appeal Tribunal, Base Childrenswear Limited v Miss N Lomana Otshudi, found that a one-off act of discrimination does not lessen the impact so that compensation is limited to the lower band. In other words, with injury to feelings, it is less about frequency and more about severity.
The one-off act of discrimination in this case was the employee’s dismissal after 3 months of working as a photographer. The other acts of discrimination during employment were out of time. It did not matter that the period of employment was short. Dismissal came out of the blue.
At the dismissal meeting, Miss Otshudi was told that she was being made redundant. She then asked whether her dismissal was to do with her race. This resulted in the Managing Director calling another manager into the room. Miss Otshudi started to cry surrounded by three of the most senior managers in the company. She was challenged to say that this was a discrimination case before being asked to collect her belongings and leave. By the time of the final hearing the Managing Director had come up with a different reason for dismissal, namely theft.
The Employment Tribunal had awarded £16,000 for injury to feelings which fell into the middle Vento band. It also awarded aggravated damages (£5000), an award for personal injury as the employee had suffered medical depression (£3000) after her dismissal and a 25% uplift for the company’s failure to comply with the ACAS Code by not dealing with Miss Otshudi’s grievance and appeal.
The Employment Appeal Tribunal made a small discount to the award for double counting between the awards but this was small when looked at in the round (£1000).
What can employers take away from this?
Clearly the dismissal meeting is a textbook example of how not to do things on the Human Resources front. However, it did not end there. Ignoring a grievance and appeal translated into increased compensation.
The Tribunal also took into account the way in which the employer then defended the case it faced. It took a dim view of the “maintenance of a lie” about a redundancy, a failure to respond to disclosure requests and the disastrous late alteration of the case to allege theft. Mixed reasons for dismissal never end well for an employer. Be clear and consistent from the outset.
Finally, a failure to apologise played a part in this case in the aggravated damages award. The power of saying sorry (at the right time) should not be underestimated.