Acting to stop harm: the FCA and Appointed Representatives
The Court of Appeal has recently given guidance as to the level of ‘injury to feelings’ award which should be made to Claimants bringing discrimination claims. In Kemeh v Ministry of Defence, the Court of Appeal applied the so-called “Vento guidelines” which were set out in the case of Vento v Chief Constable of West Yorkshire Police, and which have been subject to inflationary increases as set out in Da-Bell v NSPCC.
Mr Kemeh was an army chef based in the Falkland Islands. Mr Kemeh and his line manager, both of whom were employed by the Ministry of Defence, were watching a football match, during which the line manager called Mr Kemeh a “dumb black bastard”. Mr Kemeh brought proceedings for direct race discrimination. The Ministry of Defence accepted it was vicariously liable for the line manager’s comments and the Tribunal awarded Mr Kemeh £12,000 in respect of injury to feelings.
The Ministry of Defence appealed on the basis that the level of injury to feelings award was manifestly excessive. The Employment Appeal Tribunal agreed, and halved the award so that it fell at the top of the bottom band of compensation (£600 - £6,000), as set out in the Vento guidelines. Mr Kemeh appealed, however the Court of Appeal agreed with the decision of the EAT. It noted that the aim of the Vento guidelines was to compensate injured feelings, and not to punish employers for poor staff management. An award must not trivialise the harm done, but equally it must not over-compensate victims in comparison to, say, those who have brought personal injury claims. The Vento guidelines provide that one-off incidents such as in this case should fall into the bottom band of compensation, and that in this case there was no justification for allocating a one-off incident to the middle band. To do so would constitute over-compensation.
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