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.

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 25th March 2019.

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).