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EAT gives green light for increase to injury to feelings awards

Guidelines for awarding compensation for injury to feelings were originally set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) consisting of three bands depending upon the nature and severity of harassment, with each having a lower and an upper limit (see paragraph 65). The level of awards was subsequently updated by the EAT in Da’Bell v NSPCC to take account of inflation as follows: a lower band: £600 to £6,000; a middle band: £6,000 to £18,000; and, a higher band: £18,000 to £30,000.

In (1) AA Solicitors Limited trading as AA Solicitors and (2) Mr Ali v Majid, Miss Majid (M) was on a legal practice course undertaking work experience. M was made redundant after six weeks. M alleged that Ali (A) had committed around 40 or more acts of sexual harassment against her, ranging from asking her to go out to the cinema, talking about installing a bed in one of the rooms at the office, attempting to hug her, touching her arms, squeezing and rubbing her hands when shaking hands and making her feel uncomfortable by these types of act.

The ET upheld a large number of M’s claims. The ET found that M was a young woman at the start of her professional career and A was an older man in position of power and authority. The ET also found that there was evidence of visits to M’s GP resulting from stress and anxiety because of the harassment. The ET concluded that the case fell within the middle Vento band. It noted that that band had since been uplifted by reason of inflation (Da’Bell), together with a 10% uplift to damages in general as a result of the Court of Appeal’s decision in Simmons v Castle, to a range from £6,600, to £19,800. M was awarded £14,000 for injury to feelings.

The employer appealed arguing that the award was excessive as this was a case “merely of persistent unwanted attentions, but without serious physical contact, that was no worse than gauche and insinuating”.

The EAT rejected the appeal. The ET was very well placed to make its assessment and fine-tune its valuation of what the right level of award was. Even if the EAT itself may think the amount to be on the high side, it would not interfere, as the award was not “manifestly excessive” and was correctly placed in the middle band under the Vento guidelines.

In making its ruling, however, the EAT went on to hold that while consistency is highly desirable, in future cases there is no need for ETs to await guidance from the appellate courts on adjusting the Vento bands to take account of inflation. If there is convincing evidence of the rate of change in the value of money (which could, in principle go down as well as up), then a reasonable ET acting on that evidence would be entitled without error of law to act by adjusting the band ranges and any award for injury to feelings accordingly.

This ruling therefore gives ETs the power to update figures themselves where there is persuasive evidence about the value of money that supports an increase, or indeed a decrease.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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