Following a consultation in relation to existing Vento Bands, the Presidents of the Employment Tribunal in England, Wales and Scotland have confirmed that new bands will only apply to any claim issued on or after 11 September 2017.
For the past several years, a typical award for injury to feelings has been around £5,000. Given the ascent of vento bands, this average is likely to increase.
New Vento Bands
In less serious cases of discrimination, such as a one-off act of relatively minor harassment or discrimination, the tribunal can now award £800 to £8,400. Previously, this bracket fell between £600 and £6,000.
Cases which are deemed serious but do not fall into the top band, i.e. a serious one-off act of harassment or a less serious but lengthy act of discrimination, can now award between £8,400 and £25,200. Previously this category was capped between £6,000 and £18,000.
In the most serious cases, a tribunal is now able to award between £25,200 and £42,000 – previously capped at £18,000 to £30,000. These cases feature the most serious of incidents concerning discrimination, including long campaigns of harassment.
These have been introduced, which will award anything over £42,000. We await to see what constitutes exceptional circumstances. The Presidential Guidance on the Vento bands will be reviewed in March 2018 and then annually, with any new guidance coming into force on or around 6 April each year. What is a Vento Band? Vento bands dictate how much compensation should be awarded for injury to feelings in employment tribunal cases.
This aspect of compensation does not take into account financial losses for the discrimination but compensates for the hurt and upset that the individual has suffered. The person found accountable for a case of discrimination will be responsible for paying the award.
A tribunal has discretion as to what to award, and will take into account a number of factors to determine an amount, including an individual’s personal characteristics; any relevant medical condition or particular vulnerability; the actual impact of the discriminatory act or acts on the individual, and the extent to which the employer has sought to make amends.
What this means for Employers
If an employer is found guilty of discrimination, the compensation to pay for injury to feelings could be a detrimental cost for business. Considering that as of July this year, tribunal fees no longer exist to deter claims, employers must prepare for increasing claims and an increase in potential costs associated with a tribunal. Amy Paxton, Croner Employment Law Specialist, says: "In 2002, the Court of Appeal set out the Vento bands to assist tribunals in making awards for injury to feelings. "Since then, there has been a lot of uncertainty as to how those bands should be treated to take into account inflation and the current value of money. Whilst the recent Presidential Guidance removes some of that confusion, it reiterates the need for employers to ensure that they are taking action to limit their exposure to potentially costly discrimination and whistleblowing claims. "It is important for employers to consider implementing diversity training and clear robust policies to reduce such risk."
For employment tribunal claims presented on or after 11th September 2017, this guidance sets out revised Vento bands increased for inflation, and also by the 10% uplift. The Presidents say they will review and, if necessary, amend the Presidential Guidance in March 2018 and annually thereafter. Any new Presidential Guidance will come into effect in respect of claims presented on or after 6th April in each year.
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