Injury to feelings awards - a subjective test

Co-authored by Jemille Gibson and Nick Bailey

The Employment Appeals Tribunal (EAT) have reminded employers in Komeng v Creative Support Limited that when considering injury to feelings awards, the Tribunal’s primary consideration is the effect on the employee, rather than contemplating the gravity of what the employer actually did. The test is therefore a subjective one, not objective, which can often be forgotten when employers argue about the severity of the treatment complained of.

Background

Mr Komeng worked for Creative Support Limited (the “Employer”) as a Waking Night Care Worker. He was employed from 13 November 2011. He had asked his employer to enrol him on to a Level 3 NVQ course. The Employer failed to do so. Mr Komeng is a black African and employees of other races had been enrolled on and attended Level 3 NVQ courses. Additionally, a request by Mr Komeng to have some weekends off and have other employees share the burden of weekend working was also refused.

The Employment Tribunal (“ET”) found that both of these instances amounted to direct race discrimination and awarded Mr Komeng £8,400 to compensate his injury to feelings. This was towards the top of the lower injury to feelings band as established in Vento v Chief Constable of West Yorkshire Police (the “Vento Bands”).

Mr Komeng appealed, arguing he should have been granted a higher amount for injury to feelings.

Decision

Mr Komeng’s appeal on this point was dismissed. The EAT noted that the ET had reminded itself of the need to focus on the actual injury suffered by the employee and not the gravity of the actions of the employer.

In this case Mr Komeng appeared to have been the victim of his own fortitude, with the EAT noting his “remarkable resilience in the face of discriminatory treatment … suffered over a considerable period of time”.  When the judgment was issued Mr Komeng was still employed by the Employer, and the judgment does not state whether they had finally arranged for him to attend his course.

Mr Komeng was successful in other parts of his appeal, relating to interest and a general uplift and so was awarded a total figure of £12,757.

Lessons

Mr Komeng would have received more money if the ET and EAT had not considered him quite so “resilient” in the face of extended poor treatment from the Employer, and it is easy to see how another employee might have argued that a more severe injury to feelings had occurred, as well as potential breaches of the contractual term of trust and confidence.

Employers considering potential liability for injury to feelings must therefore not seek to assess how bad they think the conduct in question was. They should instead consider the effect of the conduct complained of from the employee’s perspective.