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These articles gives a general overview only and the legal position at the time of writing them. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print.

Injury to Feelings

The range of potential discrimination claims against businesses is increasing. It is now possible to bring discrimination claims based on race, sex, disability, sexuality and religion/belief. Over the past years, one of the distinguishing features of discrimination claims (as opposed to unfair dismissal claims) is that employees can be awarded compensation for injury to feelings.

In general terms, the Employment Tribunal will consider the hurt and distress caused to the employee and make an appropriate award. The Court of Appeal has held that there are three broad bands of compensation for injury to feelings. There is a top band between £15,000 and £25,000 which will be awarded in the most serious cases where there has been, for example, a lengthy campaign of discriminatory harassment. There is then a middle band between £5,000 and £15,000 and a lower band between £500 and £5,000 for less serious cases such as where the act of discrimination is an isolated or one off occurrence.

In practice, the Employment Tribunal have made relatively modest awards for injury to feelings. The median award for injury to feelings in race discrimination cases is £5,000 and the median award for injury to feelings in sex discrimination and disability discrimination cases is £3,000.

Until very recently, awards for injury to feelings could not be made in claims for unfair dismissal. This has now been challenged for the first time by the Court of Appeal (in a case called Dunachie) which was given in the earlier part of this year. The Court of Appeal held that there was no reason in principle why employees who had been unfairly dismissed could not be awarded compensation for injury to feelings as well as compensation for loss of earnings.

The Court of Appeal in Dunachie were not as specific as one might hope about the circumstances where an award for injury to feelings could be made. The clearest indication was that an award for injury to feelings could be made where there was a “real injury to the employee's self respect”. It was further suggested that this would be most common in cases of constructive unfair dismissal where an employee had been driven from their job as a result of the conduct of the employer.

It is likely that, from now on, any businesses defending unfair dismissal claims will be routinely faced with a demand for compensation for injury to feelings. In practice, the employer should treat this head of claim with some caution and should continue to take the view that, in most ordinary cases of unfair dismissal, the compensation will primarily be compensation for past and future loss of earnings and a basic award (equal to statutory redundancy pay). In any event, the Court of Appeal judgement in Dunachie is being appealed to the House of Lords and may even be overturned!

 

This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case.  Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 0800 135 7917 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.

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<p><strong><a href="http://www.lemon-co.co.uk/article_injury-to-feelings.php">The Laws Surrounding Compensation Over Injured Feelings</a></strong><br /> Discrimination cases against businesses are growing. It's now possible to make discrimination claims based on race, sex, disability, sexuality and belief....</p>

 

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