How do we value compensation for ‘injury to feelings’?

Thank you to Kate Wilson at Park Square Barristers for this post. Please follow this link to view her CV.

As was considered in the previous post, ‘injury to feelings’ (i.e. an emotional reaction falling short of a diagnosed psychiatric disorder) may be compensated for if an employee is able to bring a claim pursuant to the Protection from Harassment Act 1997. Here we consider how to approach the task of valuing awards for injury to feelings.

The starting point for the quantification of such awards are the guidelines set down by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871. Noting the difficulties presented in valuing compensation for intangible losses that are incapable of objective proof, for example subjective feelings of upset, frustration, mental distress, fear, humiliation and anguish of varying degrees of intensity, the Court of Appeal identified three broad bands of compensation for ‘injury to feelings’ (as distinct from compensation for a psychiatric injury). These were updated on 25th March 2019 and are set out in tabular form below.

BAND 1 Awards of between £900 and £8,800 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
BAND 2 The middle band of between £8,800 and £26,300 should be used for serious cases, which do not merit an award in the highest band
BAND 3 The top band should normally be between £26,300 and £44,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £44,000.

Unlike damages for personal injury, the gravity and duration of the acts themselves will influence the level of award, together with the motivation of the harassing party and the effect of the harassment on the employee, whereas personal injury damages focus entirely on the effect on the injured party. The amount awarded will depend upon the aggravating circumstances of each case. Personal injury practitioners see the Vento bands as generous compared to the damages available for psychiatric injuries as set out in the Judicial Collect Guidelines (14th Edition). How, therefore, do we value claims for injured feelings and psychiatric harm suffered by the same individual in response to a campaign of harassment?

This was the question for the Court of Appeal in Martins v Choudhary [2007] EWCA Civ 1379. Some courts have made separate awards, whereas others provide a global award. The Court of Appeal concluded that there should be no hard and fast rule about whether separate awards should be made. There may be some cases where it is more just and convenient to assess compensation covering both aspects. However, and particularly where the psychiatric injury is more substantial, it may be more appropriate to make a separate award to understand the reasoning underpinning the judgment. This is especially so if the judge is to avoid falling into error by compensating the employee twice on the same basis, a principle known as ‘double recovery’.

Occasionally the conduct of the defendant in non-harassment claims may be so atrocious that an award of general damages alone would be insufficient. In such rare instances justice may be achieved by the making of an additional award of aggravated damages to compensate for injured feelings as well. In the modern slavery case of AT and Others v Dulghieru and Another [2009] EWHC 225 (QB), in which the claimants had been trafficked into the sex industry, Mr Justice Treacy stated “In my award of general damages, I have included an element to cover the psychiatric harm suffered. That however, is to be distinguished from the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the Defendants.” He then went on to make an enhanced award to account for the appalling actions of their traffickers.

In conclusion, the Vento guidelines can produce sizeable awards where the harassed employee has not endured psychiatric harm. Damages for injury to feelings arising out of harassment in the workplace may take into account both the nature of the conduct complained as well as its effect. Making an award for both injury to feelings and a psychiatric injury is not only permissible, but in the most outrageous cases may be desirable.

In the next post we will consider the availability of damages for the loss of congenial employment.