Companies and their HR departments would be wise to introduce an on-going training programme aimed at ensuring that their managers and wider staff do not compromise the business by creating the potential for a discriminatory employment law case due to a poor choice of language. Particularly when dealing with a disciplinary matter or dismissal.
Every year there are a number of discrimination related employment law cases that are heard in the Employment Tribunal that result in an additional payment being applied over and above the initial award, to compensate for hurt feelings. Such compensation, made in relation to discrimination cases, is applied in cases where an employee has been on the receiving end of humiliating or degrading treatment resulting in distress and is entirely separate from any compensation awarded for financial losses that the employee has suffered. The amount of the award is assessed using a sliding scale referred to as Vento bands, so called following the first case landmark case Vento –v-Chief Constable of West Yorkshire Police, which resulted in the definition of guidelines for assessing the degree of injury to feelings.
There are three Vento bands, the rates are currently as follows:
- The least serious cases were the discriminatory act occurred just once fall into the lowest band - £900 to £9,100
- The middle band relates to more serious cases - £9,100 to £27,400
- The highest band, reserved for cases relating to prolonged harassment founded on discrimination that has an extreme impact on the victim - £27,400 to £45,600
The bands are generally reviewed each year in April and are not technically limited, therefore, in an exceptional case it is theoretically possible to surpass the highest band.
Daniel Theron, a partner, commented "discriminatory language, even if delivered under the guise of "office banter" can be another layer in discrimination cases that leads to the expansion of the award granted to an employee in successful discrimination cases, and is granted to reflect the greater or lesser degree of the injury to feelings felt by the victim." Daniel further commented "it should be pointed out that the Vento awards relate only to the adverse effect on the employee. The size of the employer's business and the resources available are not considered to be relevant and these factors are not taken into account"
The factors considered when assessing the effect on the employee and the level of injured feelings are as follows:
- The actual degree of upset, hurt and/or distress caused
- The seniority of the person delivering the discriminatory behaviour
- Pre-existing conditions suffered by the employee, such as anxiety or stress
- Recent impairment of the employee's personal relationships
- Whether the employee demonstrated vulnerability
- Whether the employee suffered from a medical condition that could be affected by the injury to hurt feelings
- The seriousness of the behaviour levelled at the employee
- How the employer responded to the complaint
Businesses should have a clear policy on bullying and anti-harassment, however, it is not sufficient to brandish a policy document it must be actively implemented. All employees should be made aware of the terms of the policy, as well as the implications of breaching the policy. Giambrone & Partners employment law team advises that regular workplace training for managers who should be trained to recognise and deal with discrimination issues if and when they see them. There should also be a fair complaints procedure that allows employees to raise an issue without fear of repercussions.
An employer that takes continuous active steps to limit the potential discrimination and associated issues, has a degree of mitigation against a claim if they are perceived as having made every effort to offset the potential for discrimination to arise.
Giambrone & Partners' employment law team can provide advice, guidance and training programmes for senior staff and HR departments to keep them fully apprised of current employment law and any changes arising in the future.
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