£16,000 injury to feelings compensation for one-off act of harassment

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Posted on 28 May 2019

The Employment Appeal Tribunal ruled that an employment tribunal had been entitled to award an employee £16,000 compensation for injury to feelings for a one-off act of racial harassment. Employment tribunals do not have to award compensation in the lower band for one-off acts of discrimination. They can award higher compensation if the effect of the discrimination on the employee justifies this.  

What are the compensation bands for injury to feelings?

Compensation for jnjury to feelings falls into three bands, known as Vento bands. The lower band is for less serious cases, such as one-off incidents of discrimination. The middle band is for serious cases which do not justify an award in the top band. The top band is for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment.

What is the background to the claim for racial harassment?

Ms Otshudi worked for Base Childrenswear as a photographer for three months. The Managing Director called her into a meeting and dismissed her with immediate effect on grounds of redundancy.  She did not believe the reason given and asked whether her race was the reason for dismissal. The Managing Director called two other senior managers into the meeting to confirm that redundancy was the reason.  

Ms Otshudi raised a grievance and appealed against her dismissal but her employer did not respond.  

Ms Otshudi brought a claim for racial harassment. Shortly before the employment tribunal hearing her employer changed its case and said it had dismissed her because it suspected her of theft.  

What were the employment tribunal’s findings in the racial harassment case?

The employment tribunal ruled that Ms Otshudi’s dismissal was an act of racial harassment.  It considered that the extent of her injury fell within the middle band and awarded her £16,000 compensation for injury to feelings.   

How did the employer appeal the findings?

Her employer appealed to the Employment Appeal Tribunal. It argued that the tribunal should have awarded injury to feelings compensation in the lower band as it was a one-off act of harassment.   

The Employment Appeal Tribunal disagreed. The fact that the employment tribunal found that there had been a one-off act of harassment did not mean that it had to award compensation in the lower band.This was a relevant factor that it should take into account but was not decisive. The tribunal had considered the effect of the harassment on Ms Otshudi and this was the correct approach.  

She had studied hard to become a photographer and had expected to stay in her job for the foreseeable future. Her dismissal came out of the blue and her employer lied about its reason for dismissing her. When she challenged the reason given, the Managing Director called in other managers in an attempt to intimidate her. In the circumstances, the employment tribunal had been entitled to decide that this was a serious matter justifying compensation in the middle band.

What are the implications of this case?

When awarding compensation for injury to feelings, the employment tribunal must the consider the effect of the discrimination on the individual concerned.The description of the types of discrimination justifying awards in each of the Vento bands is only a guide. Tribunals may award compensation in the middle band or even the top band for a one-off act of discrimination or harassment if the effect on the employee is serious.     

Base Childrenswear Ltd v Otshudi

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