Can you be compensated for ‘injury to feelings’?

We last examined how we define an injury of the mind, and in particular the point that to have a valid claim for occupational stress or nervous shock it is necessary to prove the existence of a psychiatric disorder, as distinct from mere grief and upset. There are, however, cases in which this rule is not observed.

Bullying and harassment in the workplace that causes a person to suffer ordinary emotional reactions, such as anger and bitterness, can be recompensed without the individual needing to have suffered a diagnosed condition. Just as damages are available for ‘injury to feelings’ arising from a breach of the Equality Act 2010, since the landmark House of Lords decision in Majrowski v Guy’s and St. Thomas’ NHS Trust [2006] UKHL 34 it has been possible for employees to seek compensation in the civil courts for the misconduct of co-workers that amounts to a breach of the Protection from Harassment Act 1997. Section 3(2) of the 1997 Act empowers the courts to award compensation for “any anxiety caused”. As was said by Mr Justice Nichol in S&D Property Investments Ltd v Nisbet [2009] EWHC Civ 1726 “…Parliament was here intending to make plain that compensation could be given for the concern that harassment can generate even if it does not give rise to any psychiatric or medical condition.” He added that it could be proved by the claimant’s own explanation of the effects of the harassment, without the need for expert psychological evidence.

Before Majrowski the Court of Appeal gave guidance in Vento v The Chief Constable of West Yorkshire [2002] EWCA Civ 1871 on the correct scale of awards for injury to feelings falling short of a psychiatric disorder. The subsequent ‘Vento guidelines’ are periodically updated, and were last revised on 23rd March 2018.

Whether the employee establishes harassment in breach of the Equality Act 2010, or the Protection from Harassment Act 1997, the considerations involved in valuing awards for injury to feelings are similar, but not identical. The distinction was explained by Mr Justice Nichol in S&D Property Investments Limited in which he stated “Compensation for discrimination necessarily involves an award for the humiliation of being treated differently on an impermissible ground such as race or sex. That is not a necessary feature of a claim under the 1997 Act. On the other hand, it is an essential characteristic of a claim under that Act that there has been a course of conduct. There will not be a case where damages for harassment have to be assessed for an isolated or one off occurrence.”

So to conclude, claims for harassment in the workplace are the exception to the rule that compensation for occupational stress is reserved only for those who have suffered a psychiatric injury. The amount of any award will be affected by factors such as the gravity and duration of the acts complained of, as well as the motivation of the harasser and the effect on the employee. In this sense injury to feelings awards are distinct from ordinary personal injury damages, which focus entirely on the harm caused to the individual.

In our next post we will consider the guidance offered by the Court of Appeal on how to approach the task of valuing awards for injury to feelings in the cases of Vento (2002) and Choudhary v Martins (2008).