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Issue 9 (March 1997)
No change for part-time workers' pension rights
The state - we're in
Redundancy - employees can't fail to get the points
When some are more equal than others
How much for injury to feelings?
EAT puts right a TUPE wrong
How much for injury to feelings?
In issue 8 of LELR (see £28,500 race bias award not excessive) we reported the case of Johnson (1) where the Employment Appeal Tribunal upheld an Industrial Tribunal award of £21,000 compensation for injury to feelings, the highest award ever recorded. The EAT lamented the difficulty of ensuring consistency in the level of awards given the relative shortage of reported cases in this area.
An award of injury to feelings is not automatic - it is a matter for the discretion of the IT. The employee must prove the injury and that it resulted from discriminatory conduct. In a previous case the EAT said injury "will often be easy to prove in the sense that no Tribunal will take much persuasion that the anger, distress and affront caused by the act of discrimination has injured the Applicant's feelings". The level of damages to be awarded will depend on the "level of distress and humiliation that the Applicant has shown to have been caused to him/her" and the employer "must take the victim as he or she is" so that what is measured is the effect of the discriminatory conduct on the particular employee. (2)
The employee's evidence on injury to feelings will be crucial.
Where this is backed up by medical evidence of injury, then awards can increase significantly. For example, an IT awarded a College Lecturer £15,000 for being called an "Irish prat" by a colleague after the Tribunal heard medical evidence of the employee's stress and subsequent illness (3)
Where an employer's behaviour after a complaint of discrimination has helped to reduce the hurt felt, this may have a downward impact on the level of award. In Orlando (4) the EAT took account of the employer's early admission of discrimination so that Ms Orlando was "spared the indignity and hurt of having to rehearse the nature of her treatment by the club".
Conversely, in the case of Johnson the EAT awarded higher exemplary damages because the employer had initially attributed Mr Johnson's complaints to defects in his personality: a manager had said that Mr Johnson was "obsessed with his colour" and "all his troubles were in his own mind". In Johnson the EAT drew together the following principles for assessing levels of awards from previous case law:
1. Awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party.
2. An award should not be inflated by feelings of indignation at the guilty party's conduct.
3. Awards should not be so low as to diminish respect for the policy of anti-discrimination legislation, but should not be excessive as they would be regarded as untaxed riches.
4. Awards should bear some general similarity to the range of awards in personal injury cases.
5. Tribunals should bear in mind the value in every day life of the sum they have in mind and the need for public respect for the level of awards made.
What does all this mean in cash terms?
Early case law indicated that Tribunals would only award very low damages for injury to feelings, often as low as £50, although usually around a couple of hundred pounds. In 1988 two Court of Appeal decisions (5) opened the way for higher awards.
In the first of these decisions, Mr Alexander proved race discrimination by the Prison Service in not allowing him to work in the kitchen because he was said to show the "anti authoritarian arrogance common in most coloured inmates". The Court of Appeal substituted an award of £500 for the £50 initially awarded by the IT and indicated that £500 represented a figure at the lower end of the appropriate scale.
In the second case, Mrs Noone, a Microbiologist from Sri Lanka, was not appointed to a consultancy post on racial grounds. The Court of Appeal substituted an award of £3,000 after the EAT had indicated that they would have reduced the IT's figure of £5,000 to £1,000.
In Noone the Court of Appeal expressly took account of the statutory limit on compensation in discrimination cases (then £7,500) which limit, they said, was intended to cover not only sums for injury to feelings but also actual financial loss.
Although Noone, until Johnson, initially served as authority for higher levels of awards it had been used as a brake on the upward pressure on awards which followed the 1993 and 1994 abolition of the statutory limits on compensation.
In Orlando a part-time barmaid dismissed for pregnancy related reasons was awarded only £750 damages for injury to feelings. In assessing the figure of £750 the tribunal had express regard to the Noone decision.
Ms Orlando appealed against the level of award arguing that since the removal of the statutory limit the tribunal had erred in law in referring to Noone. The EAT disagreed and said "we are not persuaded that the Court of Appeal was so linking the amount of an award for injury to feelings to the then limit on compensation that it can be legitimately argued that without the limit the award would have been higher".
By contrast, in Johnson the EAT stated that the award in Noone may well have been higher had there been no statutory limit and rejected the employer's argument that the effect of Noone was to make an award of £21,000 outside the appropriate range of awards for injury to feelings.
The most recent statistics on tribunal awards for injury to feelings indicate that since the removal of the statutory limit, awards increased by 45% in the year 1994 to 1995 with the median award for injury to feelings of £1,000 in 1993 increasing to £1,500 in 1994 and 1995 (6).
While there have as yet been no reported decisions under the Disability Discrimination Act 1995 it is expected that levels of awards for injury to feelings will reflect the level of awards in sex and race discrimination cases. In a very recent case, to be reported in the next issue of LELR (see Trade unionists have feelings too), it was held that there may be awards for injury to feelings in trade union victimisation cases (7).
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1 HM Prison Service and Others v Johnson  IRLR 162
2 MOD v Cannock  IRLR 509
3 Bryans v Northumberland College of Arts and Technology and Others DLCD No 26 Page 9
4 Orlando v Didcot Power Station Sports and Social Club - EOR
5 Alexander v the Home Office  IRLR 190
Noone v Northwest Thames Regional Health Authority  IRLR 195
6 EOR No. 62 June 1996
7 Cleveland Ambulance Service v Blane, (Times, March 1997, EAT)