Compensation 




There is no upper limit for compensation in discrimination claims, and compensation can be claimed under a number of different headings. 




Although compensation is unlimited, typical awards are not high. The median award for a claim for sex discrimination in 2016-17 was £8,381.


Claims can be brought against the individual employee who carried out the discrimination, as well as their employer. The claimant can decide who to enforce their award against. Usually this will be the party with the most assets. Typically, this is the employer, but in cases of insolvency, the claimant may opt to enforce the whole claim against an individual respondent if they own assets such as a house. Co-discriminators are all equally liable for the whole amount (London Borough of Hackney v Sivanandan [2013] EWCA Civ 22).




If a claimant quit their job due to discrimination, compensation for loss of earnings will include actual financial loss, plus an estimate of the future lost income they would have earned had they not suffered discrimination. This is assessed using a “rough and ready” approach, taking the salary they would have earned had they remained at work, net of tax and National Insurance, and discounting it by a percentage to reflect future contingencies, such as the likelihood of changing jobs or losing their job at a later date, for example, through redundancy. 




Compensation is normally awarded up to the point at which the claimant is likely to find another job. It would be very unusual to compensate someone for wage loss for the rest of their working life (Wardle v Credit Agricole Corporate and Investment Bank [2011] EWCA Civ 545). 


Pension losses can be the largest element of an award of compensation, especially where there is good evidence that without the discrimination, a claimant would have stayed in their job until retirement (Griffin v Plymouth Hospital NHS Trust [2014] EWCA Civ 1240).
In August 2017, the Employment Tribunal President published new guidance explaining how tribunals approach compensation for pension loss, available on the website of the Ministry of Justice (ET Presidential Guidance: Pension loss). 


Claimants can claim damages for injury to feelings. The size of this award can reflect many factors, including the length of time the employer took to resolve the employee’s grievance (BT v Reid [2004] IRLR 327), the seniority of the discriminator and the persistence and seriousness of the discrimination.




There are three compensation bands for injury to feelings awards (Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102, Da’Bell v NSPCC UKEAT/0227/09). These bands will be revised each year in April . For claims issued from April 2018, the bands are as follows:


• Top band: £25,700 — £42,900, for the most serious cases, for example, a lengthy campaign of discriminatory harassment, with the most exceptional cases exceeding £42,000; 




• Middle band: £8,600 — £25,700, for serious cases which do not merit an award in the highest band; 




• Lower band: £900 — £8,600, for less serious cases, such as an isolated or one-off act of discrimination. 




The bands are not rigid rules and allow for flexibility. They are supposed to promote consistency and fairness between regional tribunals. 




Tribunals can award aggravated damages where employers or their employees behave in an exceptionally upsetting, vindictive or unthinking way. Actions following the initial discrimination, such as a failure to apologise, can also lead to this type of award. Aggravated damages, although intended to reflect exceptionally upsetting behaviour, are intended to compensate the victim, not to punish the offender (Bungay v Saini and others [2011] UKEAT 0331/10/2709).




Tribunals can also award compensation for personal (usually psychiatric) injury caused by discrimination. There is no legal requirement always to provide medical evidence of injury, but a failure to produce medical evidence risks a lower award, or even no award at all (Hampshire County Council v Wyatt [2016] 2016] UKEAT 0013/16/1310).



An employer must pay compensation for injury to feelings, including personal injury, even if it could not have been foreseen that the discrimination would affect the employee’s health so badly (Essa v Laing [2004] IRLR 313).



Compensation can also be claimed for hurt caused by loss of a chosen career (MoD v Cannock [1994] IRLR 509).



Very exceptionally, tribunals also award exemplary (punitive) damages, for example, where a public authority has behaved in an oppressive, arbitrary or unconstitutional way.




In deciding compensation in harassment cases, tribunals will take account of the impact of harassment and how the employer responded to it, and factors such as the victim’s age (for example, if the claimant was a young person, or was particularly vulnerable), whether the employer’s attitudes encouraged the harassment and whether complaints were ignored. 




An employer’s ability to pay is never a relevant factor when deciding how much compensation to award (Tao Herbs and Acupuncture Limited v Yin [2010] UKEAT 1477/09/1407).