Christine:  Great, Seamus. Shall we talk about something a bit more tangible that we know is the actual law as we see it? The Vento bands have been revised. Now, they're English and Welsh, but they are persuasive here in Northern Ireland. Am I correct in saying that?

Seamus:  Yeah, absolutely. So, funny enough, I qualified in 2003 and that was the year of the case. So, Vento bands have been with me for my entire career I think really.

Vento bands come from case in 2003, Vento v The Chief Constable of West Yorkshire Police. This is a Court of Appeal case in England. And in the case, then, the Court of Appeal set out their guidelines for courts and tribunals to apply whenever they were assessing injury to feelings in discrimination cases.

So, you know whenever discrimination cases are brought in the tribunal, they're assessed by way of injury to feelings. And how they're assessed in that sense is that generally you will have a claimant providing evidence to a tribunal panel as to how the discrimination has impacted them and what impact it has had upon them in relation to, I suppose, personally and in other ways.

But you will normally see that . . . Certainly now you will see that through a witness statement. And then in the course of a tribunal hearing, the claimant would be cross-examined.

Lots of arguments at the time about witness statements and whether you reduce the ability for the claimant to get their points across as well in a witness statement as they would talking personally about it to a panel. But it tends to be . . . I do think I've had a case where that hasn't come out by way of oral evidence, in any event. It is always there.

So, there are assessments that are done by the tribunal. If a tribunal finds that there has been discrimination and it's brought a sense of whatever type of discrimination that it is, there are these guidelines that we have from the Vento case.

So, these have come along from the case. They're called the Vento bands. And we have a lower, a middle, and an upper band. The bands are reviewed, and they were recently reviewed, the 2023 review conducted by the President of the Employment Tribunal in England.

And we now have a situation where the lower bands work from £1,100 to £11,200, and they talk about the lower band being applicable for less serious cases of discrimination.

And you have a middle band. The middle band is £11,200 up to £33,700. And that's for more serious cases in what they say. They're serious cases, but they're not so serious that they merit the upper band.

And then we're into the upper band, which is £33,700 to £56,200, and that's for some of the most serious cases that you will see in this type of discrimination. And there are exceptional cases that go above and beyond that £56,200.

I think from my practice, recently we have seen some of the larger cases that have come through with elements of discrimination. But whenever you look at the decisions themselves, if there's large monies that have been awarded . . .

The recent cases there that have come through the tribunal have been highlighted in the media. When you look at that, a large part of the award can be for the unfair dismissal, and then you're looking at maybe pension loss and things like that that come through. And then there's the discrimination element. So, it's always worthwhile to be looking to see the breakdown of the awards that are given.

But it's tended to be my experience anyway . . . and I know, Christine, yours is slightly different given your practice for a long time was over in England. But I think probably in Northern Ireland the awards are more conservative, more modest than what you might see and read about across in England.

Christine:  Yeah, I think that's right. And I think it's quite subjective. It is good to have the guidelines, because in the Republic of Ireland, they don't have the guidelines and I find that more problematic in how you can justify an award.

I mean, when I got claimants coming to me initially, everybody thinks they're the upper band. Everybody does. And that's completely understandable. If you've had somebody say one racist thing to you, that can impact you deeply and you do think that. So, it is quite difficult to have to explain to a client, "Well, actually, a one-off incident of racial harassment is likely to be in the lower bound".

It's a bit of a sledgehammer to some people, isn't it, Seamus? It's somebody saying, "That's actually not that bad", when they felt it extremely deeply.

Seamus:  Yeah, absolutely. And the types of things that a panel will have to consider . . . I mean, it's not an easy job at all. And as you say, certainly when you read witness statements and you hear evidence and where the panel have specifically asked the claimant about the impact and the injury to feelings that they've suffered, there's no doubt that they're human beings and they will take that on board.

And then there are certain things that they have to give consideration to. So, some of that is they have to look at was the discrimination deliberate? How serious was the discrimination and how long did it last? Was it a one-off event or was it a series of events? Was it repetitive? They'll look at that.

And they'll look at how the respondent behaved after the discriminative act. Did they move quickly to put an end to it, to ensure that it didn't happen? Did they then look at disciplinary action as a result of it? Did they look at training, and did they review their policies and procedures to make sure that there are preventative steps from this happening again? So, in other words, if there are lessons learnt from things that have arisen in the workplace.

Look, these things do arise, and often they're quite novel. With the internet and social media and all, we've had a whole slew of new things that have happened, and making sure that there are appropriate policies and procedures in place to try to deal with those.

Certainly if anyone has had cases that have been supported by the Equality Commission or by the Law Centre, that's one of the key elements of the case, that they will look to do, if you can resolve the case with them. They will also look to bring along the lessons that have been learnt. They'll want to assist the employer in looking at maybe a review of their policies and procedures or training and things like that as well.

And particularly, as well, the tribunal will look at "What is the effect of the discrimination upon the person or the claimant?" They might look for medical evidence also, and medical evidence might be available for that.

So, sometimes you will see the GP notes and records where the GP has recorded that there have maybe been certain impacts, certain ailments that have arisen as a result of that.

Sometimes there's a lot of anxiety and depression. Medication can be provided. Evidence would show that there has been a more severe impact if there is medication. How long has the person had to take the medication for? Are they still on the medication? Was medication increased? Elements of that, and if the person has had to undertake counselling or CBT, those sorts of things as well.

So, generally, if you're coming from a claimant side of it, you're maybe trying to support the impact with medical evidence then as well.

But they'll also look at other things. They'll look at the vulnerability of the employee, if they already suffer from a medical condition, if it's a disability discrimination case. What is the impact of the discrimination upon them? Has it eroded matters, trust, and confidence, all those sorts of things?

Whether the employee has suffered stress, anxiety, or damage even to their personal relationships. And in a lot of these cases, you'll notice that family issues arise, issues with partners and with siblings and children, and things like that.

And they'll also look at the degree of hurt and the distress and the upset that's been caused as well. So, they have to bring all this into consideration whenever they're looking at the award that they might make on a discrimination case where there's injury to feelings. They weigh all that up and then they probably look at it from a point of view of, "Where does this fall within the range?"

And then you'll see within each range that we went through there, there's quite a broad spectrum of what can be awarded as well.

But the other thing then that you'd mentioned, Christine, was just about whether it has an impact in Northern Ireland.

So, I think as practitioners here, we all absolutely give consideration to the Vento bands. I look back at a recent case that I had defended, and I can see there that there's specific mention within that to the injury to feelings aspect. They talked about the middle band of Vento, and that was our tribunal here.

So, although it's a Court of Appeal decision in England, and we obviously have our own Court of Appeal in Northern Ireland, which is where we take our mainstay of decisions on whether they're binding upon us, there is no doubt that this is a well-established case that our tribunals have cognisance of and they give consideration to also.

And one other thing that I wanted to mention was . . . I think maybe you have the case there as well. There is a 2008 case. That's going back some time, and it's two Polish workers that were working in a factory in Belfast, Urbanska and Kopowska. I've probably butchered both of those names, so apologies. But I think we are putting them up on the link there where people can have a look.

And those were cases where the tribunal found that there had been really serious issues arising in relation to discrimination. These were employees that were fundamentally treated differently. They were given different duties to do. They had to clean floors and they had to clean the toilets. These duties and responsibilities were not given to other employees, and they were treated badly. They were kicked and spat on and all of those sorts of things.

It's not easy reading the decision, but it's an interesting one. And you can see, then, the scope of how the tribunal apply their mind to the compensation that was awarded. I think in total the compensation was coming out on each of them . . . Certainly, one of them was for £52,000.

But again, you can read the decision and you'll see that that's not all about just the discrimination element and that they're awarded for their injury to feelings. There are other claims involved in there as well, but it gives a good idea of . . .

Now, it's going back to 2008. It's going back a while now. Fresh in my memory, though. That goes to show you my age. Not that I was involved in any way in the cases.

But going back to that timeframe . . . And things will have moved on. They do look at the Ventos obviously, they do increase the values of them, but it gives an idea of how the tribunal will look at that locally here in Northern Ireland and what they look at. There are loads of cases out there to look at, but that's always one that sticks in my mind.

**Case referred to:
Urbanska-Kopowska v McIlroy and another t/a Mac's Quality Foods NIIT/1376/08:
The industrial tribunal in Northern Ireland has awarded over £52,000 for race discrimination after an employer ignored complaints from a Polish female worker that she was being subjected to serious sexual and racial harassment in the factory in which she worked.
Urbanska- Kopowska v Danny McIlroy and Maggie McIlr... | [2010] NIIT 1376_08IT | Industrial Tribunals Northern Ireland | Judgment | Law | CaseMine