When advising clients regarding employment claims, it is important to have a clear idea of the potential value of any claim.

This article considers the legal framework to determine appropriate damages in the Northern Ireland Tribunals for claims involving discrimination or detriment under Part VI of the Employment Rights (Northern Ireland) Order 1996. It can be read in conjunction with our article on damages for unfair dismissal which can be found here.

This article will cover awards for injury to feelings, psychological personal injury and aggravated, punitive and exemplary damages. Whilst we are used to dealing with these awards in the context of discrimination claims, it is important to remember that they are available for detriment claims under Part VI of the Employment Rights (Northern Ireland) Order 1996.

Injury to feelings

The Tribunal may make an award in respect of injury to feelings in cases involving discrimination on the basis of a protected characteristic or a detriment claim under Part VI of the Employment Rights (Northern Ireland) Order 1996.

In the case of Vento v Chief Constable of West Yorkshire Police 2002, the Court of Appeal for England and Wales set out guidance for awards for injury to feelings which is updated annually. Awards for injury to feelings normally fall within three bands known as the Vento bands:

• a lower band of £1,100 to £11,200 (less serious cases);
• a middle band of £11,200 to £33,700 (cases that do not merit an award in the upper band); and
• an upper band of £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200.

It is important to note that whilst decisions of the Court of Appeal in England and Wales are strong persuasive authority, they do not bind the courts in Northern Ireland. The Tribunal may therefore depart from the Vento bands. However, the Vento bands are applied in the vast majority of cases and remain a useful tool for assessing damages.

When considering the appropriate level of an injury to feelings award the Tribunal will consider the following factors:

• The severity of the discrimination;
• The length of any course of discriminatory conduct;
• How the Claimant reacted to the discrimination;
• Any medical condition from which the Claimant suffered; and
• The manner in which the Respondent dealt with any grievance brought by the Claimant.

It is important to note that the statutory cap on compensatory awards in unfair dismissal claims does not apply in claims for discrimination / detriment.

Psychological Personal Injury

The Tribunal also has jurisdiction to hear claims for psychological personal injury arising from discrimination / detriment claims. Damages for personal injuries are divided into general and special damages.

General damages are intended to cover damages for pain, suffering and loss of amenity arising from the injury. The Judicial Studies Board for Northern Ireland have published guidelines for the assessment of general damages in personal injury cases in Northern Ireland which is referred to as the green book.

Special damages are available for financial loss arising out of the injury, such as medical expenses and loss of earnings.

Assessment of personal injury will almost always require the evidence of an appropriate medical expert, often jointly appointed by the parties.

Double recovery

In cases involving claims of psychological personal injury and injury to feelings, the Tribunal will take care to avoid issues of double recovery.

This issue was recently clarified by the Court of Appeal for Northern Ireland in the case of Forose v Geraghty 2023. Here, the Court of Appeal reduced a combined award of £61,500 for injury to feelings and psychological personal injury to £40,000 as the Court felt there had been an element of double recovery.

Aggravated, punitive and exemplary damages

Aggravated, punitive and exemplary damages are available for discrimination / detriment claims.

Aggravated damages compensate a Claimant for mental distress / injury to feelings caused by the manner or motive behind an act of discrimination or detriment. Aggravated damages can also apply to compensate the Claimant for the actions of the Respondent following an act of discrimination / detriment. An example would be a refusal by a Respondent to properly investigate a complaint of discrimination.

Punitive damages or Exemplary damages are damages in excess of the Claimant’s loss. They are intended to punish the Respondent and are only available in the most serious cases.

These damages are reserved for the most serious cases where the behaviour of the Respondent has aggravated the harm to the Claimant.

Examples of factors which may give rise to an award for aggravated, punitive or exemplary damages include:

• Attempting to conceal or trivialise the incidents giving rise to the claim;
• The conduct of internal investigations into the allegations;
• Failure to appropriately deal with those responsible for the discrimination;
• The Respondent’s conduct during proceedings including unwarranted use of costs warning letters;
• Continued failure to correct the problem which lead to the discrimination.

Comment

Employment litigation involving discrimination or detriment claims can add significantly to the potential damages the Claimant can expect to receive. The Respondent’s conduct when confronted with such complaints is highly relevant to the potential damages. Respondents should ensure they have robust policies and procedures in place to deal with these complaints to avoid litigation or mitigate the potential damages in such claims.

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