Injury to feelings awards: when are they too much?

The recent case of Eddie Stobart Limited v Graham provides employers and courts with useful guidance on how to measure injury to feelings’ awards.  In this appeal, Eddie Stobart’s legal team successfully overturned an award of £10,000, to be replaced by an award of £2,000.  Read on to find out more.

What is an injury to feelings award?

Where someone has suffered emotional distress due to discriminatory actions of their employer, a prospective employer, or a fellow employee, they can claim compensation for ‘injury to feelings’, in addition to compensation for financial losses. Employment Tribunals assess this form of compensation according to three different categories, named the Vento bands, which are revised annually in April but which, at present, are:

• Lower band: £1,200 – £11,700
• Middle band: £11,700 – £35,200
• Highest band: £35,200 – £58,700.

How does the Tribunal decide how much to award?

Each band reflects the seriousness of the distress the discrimination has caused the claimant. The lower band usually compensates for a less serious singular instance of discrimination, the middle band aims to compensate a more serious singular act of discrimination, and the highest band is available to the Tribunal to compensate for the most serious cases of discrimination, usually where there are a series or campaign of discriminatory acts.

What factors are considered?

• The claimant’s description of the injury
• The duration of the consequences
• The effect on past, current and future work
• The effect on personal life or quality of life

The burden is on the claimant to prove that they have suffered injury to feelings and the extent of this, but the evidential burden is not significantly high, particularly where the claimant is unrepresented.  Some medical evidence will be required for the claimant to stand any chance of entering the middle or highest band.

The Case: Eddie Stobart Ltd v Graham

Facts

In a recent case heard by the Employment Appeal Tribunal (EAT), it was held that a £10,000 injury to feelings award for the employer’s failure to deal adequately with an employee’s grievance was “manifestly excessive”.   Before the Employment Tribunal, the Claimant, Ms Graham, argued that she had suffered pregnancy and maternity discrimination when her role was being made redundant shortly before her maternity leave, and she was not offered an alternative role that she believed was suitable. If the role had been suitable for her, she would have been entitled to be offered it by her employer in preference to other colleagues, as prescribed by the Maternity and Parental Leave Regulations 1999.

In this instance, her employer, Eddie Stobart, did not think it was a suitable alternative role for her (and so did not offer it outright) and she was unsuccessful following a competitive interview.  Ms Graham raised a grievance about not being offered the role, but the grievance was not acknowledged and when she mentioned it in a redundancy consultation meeting, she was told to resend the email.

After re-sending the grievance email, there was still no response, and Ms Graham was ultimately made redundant. She did not appeal the decision but did highlight her unanswered grievance to the head of HR, who said she would look into the situation. It was found that the employer’s IT firewall system had blocked the Claimant’s emails, so they were not received.

At this point, you might be wondering what the employer did wrong, given that they never actually received the emails. Could the employer be expected to respond to a grievance they hadn’t received?

The Employment Tribunal held that, because the Claimant had brought the unanswered grievance to light in two different circumstances, and the employer failed to follow up or discuss the content of the grievance with her, she had suffered detrimental treatment and pregnancy and maternity discrimination. It was inferred by the Tribunal that the Claimant’s absence whilst on maternity leave influenced the employer’s approach towards the grievance. The Tribunal awarded the Claimant £10,000 for injury to feelings caused by the way her grievance was dealt with. The Tribunal did agree with the employer, however, that the alternative position was unsuitable and so the Claimant’s automatic unfair dismissal claim failed.

Appeal to the EAT

Eddie Stobart Ltd appealed to the EAT that the injury to feelings award was unreasonably excessive. It was clear to the EAT that there was limited factual evidence as to the injury the Claimant suffered, but sympathised with her situation.

After reviewing all of the facts, the EAT held that the employer had not purposefully blocked the Claimant’s grievance because of her maternity leave, but had erred in not following up with her and taking steps to ensure her grievance was dealt with properly. Whilst there was limited factual evidence of the upset caused, the EAT made clear that injury to feelings can be inferred on little evidence and was content to infer some injury to feelings in this case due to the manner of the discrimination and detrimental treatment. In doing so, it awarded Ms Graham £2,000 for injury to feelings. The EAT stated that they could have awarded a lower sum, the inference being that £2,000 was still generous, but was able to infer some injury arising from the fact that Ms Graham had had to chase her grievance while she was on maternity leave.

What are the Torque Takeaways from this case?

1. Employers need to acknowledge and deal with all grievances promptly and seriously, this includes when an employee may be on maternity leave or about to commence a period of maternity leave. Ignoring or overlooking a process step in a grievance process, even if excusable or well-intentioned, could still result in an injury to feelings award;
2. If it is clear from what an employee says or otherwise communicates, that they’ve raised a grievance, but the grievance has not been received or registered formally, be sure to make reasonable and sensitive enquiries of the individual to obtain a copy of their grievance. Do not just turn a blind eye or put it down to ‘hearsay’ if there has been no formal communication.  An employer will be expected to take reasonable steps to follow up on the knowledge that they have, and either obtain a copy of the grievance (if it exists) or clarity from the individual in question that there is no grievance or any concerns, more generally;
3. The importance of line manager training on how best to deal with grievances cannot be underestimated; it could be the difference between winning or losing a discrimination claim and avoiding an injury to feelings award altogether and definitely worth the investment.

If you would like any advice about how to act proactively to avoid situations like these, or are interested to learn more about our line manager training, please get in touch with us at info@torquelaw.co.uk and we’d be more than happy to assist.