While Employment Tribunals usually deal in compensation measured by reference to wage loss, they can sometimes make awards for non-financial losses. One example of this is an award for injury to feelings, often included as a measure of compensation in a claim for discrimination. Why an award for injury to feelings is included in a discrimination case is, I am sure, fairly obvious. But therein lies a question, how might a Tribunal determine the level of compensation to award a Claimant for injury to their feelings? After all, the extent to which a person’s feelings are hurt is entirely subjective.
The answer takes the form of the Vento Bands, which were introduced in December 2002 following the Court of Appeal decision of Vento v Chief Constable of West Yorkshire Police (No 2)  IRLR 102 (hereinafter referred to as ‘Vento’). Vento provided very clear guidelines relative to the amount of compensation a Claimant should receive for injury to feelings. The guidelines were named the Vento Bands, for the very simple reason that three bands were created for potential awards. The bands are as follows:
- The lower band, which is used for cases of a less serious nature;
- The middle band, which is used for cases with a degree of seriousness but which do not meet the requirements to merit an award under the upper band; and
- The upper band, which is used for the most serious cases.
The Vento Bands are increased every year in line with inflation. The increases are announced in documents called ‘Presidential Guidance’, which are issued by the Presidents of the Employment Tribunals in Scotland and England & Wales.
This year is no exception and the Presidents have published new Guidance, dated 26 March 2021, which will apply to claims presented on or after 6 April 2021. The Vento Bands will be increased as follows:
- £900 – £9,100 for the lower band;
- £9,100 – £27,400 for the middle band; and
- £27,400 – £45,600 for the upper band.
The Guidance also provides that a compensatory award in the most exceptional cases could exceed £45,600.
Not everything changed in the latest Presidential Guidance however. Paragraph 3 provides that claims presented in Scotland will still be subject to the Guidance issued on 5 September 2017. This states that if an Employment Tribunal decides that a 10% uplift is not applicable, then the figures and approach should be adjusted accordingly.
It is important for Claimants and Respondents to keep the updated Vento Band levels in mind when considering claims for injury to feelings. It will be interesting to see how the new levels are applied in practice this year.
If you require any advice regarding discrimination in the workplace, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Blythe Petrie, Trainee Solicitor
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