The number of claims which succeed at employment tribunals following discrimination claims is only a small percentage of the overall number. Will there be an upsurge now that fees have been scrapped?
When we advise employers and employees on discrimination cases, one of the first questions usually to arise is how much compensation the claimant could reasonably expect. In straightforward unfair dismissal cases it is only possible to recover compensation for economic losses i.e. loss of earnings, pension contributions, bonuses and any other financial losses occurring as a result of being unfairly dismissed. It is not possible to claim compensation for the stress of being dismissed or for the distress at the process or procedures used.
Injury to feelings
In discrimination claims this is not the case. In addition to being able to claim for any financial losses arising out of being a victim of a discriminatory act, the claimant can also claim an award for injury to feelings. This is an award that is at the discretion of the employment tribunal. The employment judge will consider all the facts of the case and the effect of the discrimination upon the successful claimant.
How much are discrimination claims worth?
Employment judges are guided by the “Vento” guidelines which come from a long standing case of that name. Over the years they have been revised and upgraded and the employment tribunal jurisdiction in England, Wales and Scotland has just issued an updated set of guidelines for all cases issued on or after 11 September 2017.
The Vento guidelines are split up into four bands:
- less serious cases, such as a one off incident or isolated event, will attach an award in between £800 to £8,400
- middle band between £8,400 and £25,200
- most serious cases will fall into the upper band which is from £25,200 to £42,000. This applies where there has been a lengthy campaign of harassment or bullying.
Exceptional cases only will attract an award over £42,000
The proposal is that the bands will be reviewed for March 2018 and thereafter annually, which is a development on current practice as bands have only been increased very occasionally.
Guidance will be issued shortly on which band is appropriate for which type of case. As matters stand at the moment, judging how much someone has been distressed by discriminatory conduct is a matter for the tribunal to assess on a case by case basis.
Much of the thinking behind the introduction of employment tribunal fees was an attempt to try and remove the number of allegedly vexatious discrimination cases that were being issued. The evidence suggests that in fact genuine cases were prevented and the number of vexatious cases was not affected greatly. Time will tell.