EAT decision confirms that the key question is 'what effect does the discrimination have on the individual?'
Where an individual suffers discrimination they are able to claim damages for injury to feelings. Injury to feelings awards are made in line with the 'Vento bands' which are currently as follows:
1. The lower band for less serious cases, such as where the discriminatory act is an isolated or one-off occurrence (between £900 - £8,800);
2. The middle band for serious cases which do not merit an award in the highest band (between £8,800 - 26,300); and
3. The top band for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race (between £26,300 - £44,000). Only the most exceptional cases can exceed this band.
Case details: Base Childrenswear Ltd v Otshudi
Miss Otshudi worked for Base Childrenswear Limited ('Base Ltd') as an in-house photographer for three months in 2016. In May 2016 Base Ltd's managing director ('MD') told Miss Otshudi she was being made redundant. Miss Otshudi challenged this, asking if the real reason was due to her race (she had allegedly suffered racial harassment from colleagues since starting the job). The MD and two other managers surrounded Miss Otshudi and she began to cry. The MD then challenged her to say that this was a discrimination case and told her to collect her belongings and leave immediately.
Miss Otshudi quickly appealed her dismissal and submitted a grievance. She tried to engage with Base Ltd via the Acas early conciliation process. Base Ltd did not respond to any of these actions and ultimately Miss Otshudi brought a claim for race discrimination in respect of a series of discriminatory acts throughout her employment with Base Ltd and for her dismissal and subsequent treatment.
The employment tribunal decision
The tribunal determined that only the claim relating to Miss Otshudi's dismissal and subsequent treatment was in time.
At tribunal, Base Ltd admitted they had fired Miss Otshudi under false pretences. At first, they maintained the reason for dismissal was redundancy, but much later on in the tribunal process, Base Ltd stated the real reason was Miss Otshudi was suspected of theft although these allegations had never been put to her. Miss Otshudi was subjected to cross-examination on this point at tribunal, but the theft allegation was not borne out by evidence. The tribunal determined that there were facts from which it could infer discrimination. These included the employer's failure to respond to the grievance and its dishonest approach in at first elaborating on a false redundancy situation in its defence and then subsequently putting forward to the tribunal another unfounded reason for dismissal.
Because Base Ltd could not provide a satisfactory non-discriminatory reason for her dismissal and subsequent treatment, the tribunal was satisfied that these were a result of race discrimination.
As part of its consideration the tribunal noted that Miss Otshudi was good at her job, had spent a considerable amount of time investing in her career and clearly planned to work for Base Ltd for some time. The dismissal had come out of the blue and had a profound impact on her, including a serious depressive episode following her dismissal.
Taking all of the background facts into account, the tribunal determined that Miss Otshudi's dismissal amounted to a serious case of discrimination and made an award for injury to feelings of £16,000 towards the top end of the middle Vento band, amongst other awards for financial loss, personal injury (£3,000) and aggravated damages (£5,000). The tribunal also awarded a 25% uplift as Base Ltd had failed to follow the Acas Code of Practice in its complete lack of response to her post-dismissal grievance.
Relying on the basic Vento band guidance (as set out at the top of this article) Base Ltd appealed this decision on the basis that, although serious, the dismissal was a one-off event and should have been remedied by an award in the lower Vento band.
The EAT decision
The EAT did not uphold the appeal. In considering the circumstances around Miss Otshudi's dismissal, the EAT found that the tribunal was right to consider the event sufficiently serious to fall within the middle Vento band.
The EAT highlighted that the Vento bands were not prescriptive and any injury to feelings award was fact-sensitive. Ultimately, the question for a tribunal considering the seriousness of a discriminatory event must always be 'what was the particular effect on this individual complainant?'
This decision highlights that tribunals will take a fact-specific approach to determining the appropriate Vento band when awarding damages for injury to feelings. In this case, even though there was only found to be a single act of racial discrimination, the circumstances surrounding Miss Otshudi's dismissal and its impact on her made that decision sufficiently serious to warrant it being placed in the middle band.
Base Ltd was clearly put on the back foot here as a result giving a false reason for dismissal. This case further highlights the importance of a providing a clear reason for dismissal which has a basis in fact, including those employees who do not have sufficient service to bring an unfair dismissal claim.
This decision provides a reminder of how important it is for employers to take into account the Acas Code of Practice when dealing with employee grievances. It should be noted that a tribunal can apply a 25% uplift in compensation where an employer has failed to take the Acas Code of Practice into account. This applies before the employee has acquired two years' service. Although the Acas Code of Practice does not explicitly state that it applies to former employees, in this case the tribunal and EAT expected the employer have regard to it even though the grievance was raised following termination of employment.
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