A recent Court of Appeal decision (Pereira v de Souza v Vinci Construction Ltd [2017]) held that a 10% uplift should apply to awards for injury to feelings. Although this was an English decision, it is persuasive authority for Northern Ireland. 

The new award bands are now:

• Lower band: £1,000 - £8,000
• Middle band: £8,000 - £25,000
• Top band: £25,000 - £42,000

Injury to feelings compensation is only awarded off the back of a discrimination claim, but the threshold for obtaining such compensation is low. The matters compensated for by an injury to feelings award encompass: subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (Vento v Chief Constable of West Yorkshire Police (No2) [2003] IRLR 102).

The evidence a claimant will want to produce is the material which shows the impact of the discrimination on any subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

The EAT in Taylor v XLN Telecom Ltd [2010] IRLR 49 held that the calculation of the remedy for discrimination is the same as in other torts, and that knowledge of the discriminator's motives was not necessary for recovery of injury to feelings. This highlights the wide scope for an injury to feelings claim once discrimination has been proven.

Essentially employers must focus on limiting the scope for discrimination claims which will, by the same virtue, reduce the scope of compensation for injury to feelings. Perhaps the most effective means of achieving this is via the implementation of a thorough equal opportunities policy, along with training on the policy. This would ensure that employees and managers clearly understand what conduct or actions could constitute discrimination, and more generally understand what the policy entails.

In the event that a grievance is brought, employers need to ensure that they comply with the grievance procedure and deal with the grievance confidentially, efficiently and professionally. On a more informal basis, employers should take initiative to encourage employees to respect one another’s differences.