Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Injury to feelings award reduced when the EAT looked at the evidence of the injury to feelings suffered by the claimant.
The respondent proposed to make several employees redundant. The claimant started maternity leave as the process was ongoing. She emailed the respondent outlining a grievance but it was not received as it was blocked by the firewall system. The respondent notified the claimant that she was being made redundant. The grievance was sent again but yet again blocked. She then mentioned the grievance with HR when discussing maternity pay but the matter was not escalated/processed.
The claimant brought a claim that she was unfairly dismissed and that she had been subject to detrimental treatment on the basis of pregnancy/maternity. Two of these related to the grievance which was never received/heard.
At first instance, the Tribunal rejected the claims relating to unfair dismissal and victimisation relating to maternity/pregnancy. However, on the detriments relating to the grievance it upheld the claim and awarded £10,000 for injury to feelings. The respondent appealed arguing that the award was excessive. Their argument was that it was a one-off incident and the award was disproportionate to the degree that the claimant was upset.
The EAT held that there had to be evidence that there was an injury to feelings for an award of compensation to be made. They stated that it would ordinarily follow that an individual who had been discriminated against would have some injury to feelings. The Tribunal was to make the award based upon the injury suffered rather than the manner of the discrimination. However, the latter could be used as an inference for the former. The EAT went onto refer to the Vento bands citing that the length of the discriminatory behaviour and whether it was overt had to be considered.
In terms of the award, the EAT found that there was limited evidence of the injury suffered by the claimant. The Tribunal found that there was a ‘degree of upset’ but that it was a fleeting response. The discriminatory treatment was regarded as a one off and was not regarded as being overt. As a result, it could have only been a lower band Vento case. The EAT substituted its own award by ordering £2,000 compensation for injury to feelings.
This case provides a useful examination of the Vento bands and the key elements that will be looked at. The key focus is the injury suffered by the individual and not the manner of the discrimination (although they can, of course, be linked). To this end, the limited nature of the evidence to injury to feelings meant that the £10,000 award in the middle band of Vento was regarded as perverse and a lower band award was substituted.
