In Komeng v Creative Support, the EAT has confirmed that when calculating an injury to feelings award, the tribunal’s focus should be on the actual injury suffered by the Claimant and not the gravity of the acts of the Respondent.
A care worker successfully brought a direct race discrimination claim against his employer for repeatedly failing to enrol him on a Level 3 NVQ course and refusing to allow him any weekends off, in contrast to how named comparators of a different race had been treated. The tribunal awarded injury to feelings at the upper limit of the lower Vento band, having assessed the effect of the treatment on the Claimant.
In dismissing an appeal for a higher injury to feelings award, the EAT confirmed that the tribunal had been right to evaluate the impact of the discriminatory act on the claimant and that the lower Vento band is not just for one-off incidents.
The EAT stated: “We are all different and the impact of discrimination is an individual experience. Unlawful discriminatory behaviour may effect different individuals differently, which will be for the Tribunal to assess and analyse from the evidence before it.” It also reiterated that, although an award that is manifestly too high or too low may be overturned, the EAT will not usually be best placed to determine the appropriate level of compensation for injury to feelings: the tribunal will have heard the evidence of the impact of the discriminatory act on the claimant.
In light of this, litigants should bear in mind that similar discriminatory acts may give rise to differing levels of injury to feelings compensation, depending on the facts.