The claimant brought a claim to the Employment Tribunal on the basis of unlawful direct race discrimination arising from the failure of his employer to enrol him onto a course that would have allowed him to develop professionally.  A further issue was that the employer required him to work every weekend.

The Employment Tribunal found that the failure of the employer to take any steps to enrol the claimant onto the courses and the requirement to work every weekend was not aligned with a comparator of a different race and constituted unlawful direct race discrimination.  As a result, the claimant was awarded compensation for injury to his feelings, but this was placed on the lower of the three bands in Vento v Chief Constable for West Yorkshire Police [2003] IRLR 102 - which have subsequently been updated.  Furthermore, the claimant was not awarded interest on the compensation ordered.  The claimant appealed the award to the EAT on these two grounds.

The EAT held that the ET had erred in law by failing to award interest to the Claimant.  The reason for the failure by the ET was that there was no claim made for interest but the EAT held that the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland 1996) did not require a claim for interest to be made but that it should be considered regardless.  As a result, the claimant was successful in his appeal for interest to be paid on top of his compensation payment.

The second point of appeal was the categorisation of injury to feelings in the lowest band of Vento.  The EAT referred to the decision in Cadogan Hotel Partners Ltd v Ozog when it was held that it is rare to interfere with the decision of the ET on the level of award to injury to feelings as they would have heard the evidence and been able to determine the effect the discrimination had on the claimant.   Whilst the EAT noted that the ET had not gone into detail on the level of injuries to feelings they did note that the level of compensation should be related to the actual injury suffered rather than the gravity of the acts of the respondent.  This was sufficient to allow the original decision to stand on this point.

Overall, the claimant was successful in his appeal on the issue of interest but failed when it came to moving his injury to feelings award up from the lowest band in Vento.   Therefore, overall compensation of £12,757 was awarded to the claimant.

Practical Lessons

This decision demonstrates two important facets in decisions relating to injury to feelings.

The first is that the level of compensation awarded by the court of first instance is very likely to stand considering that they heard the evidence.  This should be borne in mind when faced with an appeal on this matter.

The second is that the Tribunal must consider the award of interest even if the claimant has failed to raise the issue at the hearing.  This should be borne in mind by all of those involved in a Tribunal case including those acting for the respondent as they would wish to avoid a later appeal hearing on the issue.
https://assets.publishing.service.gov.uk/media/5d6d0399ed915d53adcf51ca/Mr_E_Komeng_v_Creative_Support_Ltd_UKEAT_0275_18_JOJ.pdf