Discrimination In The Workplace, Time for more caution and a change in workplace culture

Uplift of Injury to Feelings Compensation Banding

This comes following a Court of Appeal Decision in 2013 that certain types of damages should increase by 10%. Since then there have been conflicting decisions on whether the decision in the civil courts should be reflected in the Employment Tribunal.

Following a consultation in July 2017, it has been confirmed that bands for injury to feelings are to see the same uplift in the Employment Tribunals.

These changes mean an increased potential liability for employers who are defending a discrimination claim from an employee.

What are the increases?

  1. A lower band of £800 to £8,400 for less serious cases – for example; derogatory comments relating to sex, ethnicity or religion which cause offence to an employee, typically in a more isolated incident.

  2. middle band of £8,400 to £25,200 for cases that do not merit an award in the upper band – for example; sexual harassment by a manager towards an employee including physical acts and asking inappropriate questions about their private life.

  3. An upper band of £25,200 to £42,000 for the most serious cases – for example, a more lengthy campaign of harassment, victimisation such as bullying or consistent racist remarks being made.

  4. Exceptional cases are capable of exceeding £42,000+

These bands will apply to claims brought on or after 11 September 2017, the guidance on this banding from the Employment Tribunals is to follow.

Discrimination claims can attract uncapped damages, in theory, a single incident of gender stereo-typing or racial remark is capable of attracting damages above the upper limit.

Without going into the facts of the case, in BAE Systems v Konczak (July 2017) the claimant was awarded £360,000 in compensation. A ‘clumsy’ comment (“women are more emotional than men”) was seen as the final straw for the claimant which led to the claim being brought. It is worth noting that this was coupled with serious bullying and harassment and some unusual facts over a number of years but nevertheless a stark reminder that the courts take a dim view of employees being discriminated against in any manner.

It is perhaps worthwhile remembering that these awards apply to any type of discrimination and that at present , discrimination on the following grounds is unlawful:

  1. Age;

  2. Disability;

  3. Gender reassignment;

  4. Marriage and civil partnership;

  5. Pregnancy and maternity;

  6. Race;

  7. Religion or belief;

  8. Sex;

  9. Sexual orientation.

There are many ways to avoid this behaviour occurring in the first place such as having andimplementing thorough and up to date policies and procedures on Anti-Bullying and Harassment, Equal Opportunities Policy as well as reiterating the culture and environment which employees can expect to work in coupled with a robust approach to incidents when they occur.

As the above sets out, a failure to do so coupled with the recent removal of the requirement for applicants to pay fees to a tribunal will significantly increase the financial exposure for employers.


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