Awarding compensation for discrimination – The effect of the discrimination will be assessed, not the gravity

When considering the case of Komeng v Creative Support Limited, the Employment Appeal Tribunal found that the Employment Tribunal had applied the correct assessment by focusing on the actual injury suffered by Mr Komeng, not the gravity of the employer’s acts.

Background

Mr Komeng was employed as a waking night care worker at Creative Support Limited (“CSL”) in 2013. His job entailed providing services to vulnerable people with mental and physical disabilities. Mr Komeng describes himself as black African.

In 2015, Mr Komeng started working weekend shifts to assist CSL until it recruited additional staff. However, Mr Komeng continued to work at weekends, with no support, after the additional staff were recruited. Mr Komeng submitted a flexible working request to align his working pattern with those of his new colleagues. This was refused on the basis that other employees would not agree to change their working patterns.

Mr Komeng has expressed a wish to be enrolled on a QCF Level 3 Course for a health and social care qualification. CSL refused this too, although his colleagues who joined CSL after him were enrolled on the course.

After exhausting CSL’s grievance procedure, Mr Komeng brought a claim in the employment tribunal for direct race discrimination.

Vento bands explained

Where an employment tribunal finds that an employee has suffered discrimination, it can award compensation under several heads, one of which is “injury to feelings”. Compensation for injury to feelings is awarded in line with three bands, set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) [2003], as follows*:

• Lower band (£800 – £8,400): for less serious cases, e.g. where the discriminatory act is an isolated or one-off occurrence
• Middle band (£8,400 – £25,200): for serious cases which do not merit an award in the top band
• Top band (£25,200 – £42,000): for the most serious cases, typically awarded where there has been a lengthy campaign of discrimination

*Note that the figures quoted for each band are the figures applicable for claims presented between 11 September 2017 to 6 April 2018 only.

Findings of the Employment Tribunal (“ET”)

The ET found in favour of Mr Komeng and held that CSL’s acts amounted to direct race discrimination.

The ET therefore made an injury to feelings award to Mr Komeng of £8,400, being the top of the lower Vento band. No award for future loss was made as he remained in employment.

Mr Komeng appealed, claiming that there was a failure to award interest and an uplift on the compensation. Mr Komeng also argued that the award should have fallen within the middle Vento band.

Findings of the Employment Appeal Tribunal (“EAT”)

The EAT allowed the appeal in part and held that there had been a failure to calculate interest and apply an uplift to the award. The £8,400 award was substituted for an award of £12,757.

In terms of the level of Vento band applied, the EAT held that the ET had applied the correct assessment (based on the EAT’s decision in Cardogan Hotel Partners Limited v Ozog [2014]) stating, “They have reminded themselves of the relevant case law and that: the focus should be on the actual injury suffered by the Claimant and not the gravity of the acts”.

Comment

The impact of discrimination should be assessed on an individual basis, as it will affect everyone differently. Whilst the impact will quite often generally correspond with the gravity of the discriminatory act(s), the point of assessment should be by reference to what effect it had on the individual in question.

The question of interest should also be considered by employment tribunals; this is the case even where a claimant has not expressly referenced it in their claim form.