Remedies in Discrimination Claims & Average Awards

This is a short post about what you can expect to claim in a discrimination claim. It covers some of the key points, but not all relevant aspects, such as tax and interest.

The term “remedies” is used to describe what the Tribunal can award if a claim for discrimination is successful.

In short, what compensation can you obtain if you win your discrimination claim – this includes claims of harassment and victimisation.


Where a Claimant succeeds in a discrimination claim, an employment tribunal may do some, or all of the following:

•Order the Respondent to pay compensation.

•Make an appropriate recommendation aimed at reducing the adverse effect of the discrimination on both the Claimant and the wider workforce.

•Make a declaration as to the rights of the Claimant and the Respondent in relation to the matters to which the proceedings relate.


In most cases, we are concerned with compensation:

1. The first head of compensation is financial loss. This covers the financial loss caused by the discriminatory act, for example if you are dismissed for a discriminatory reason, you will seek to claim your loss of earnings.

a. Injury to Feelings (see table below). The award is to compensate and not to punish, and is designed to address the anger, distress and upset caused by the discrimination. There is not a separate award for each alleged act of discrimination, but if there are several caused by different protected characterises (say some by race and others for disability), the Tribunal should make separate awards for each protected ground. However, if they overlap, because they arise from the same set of facts, the Tribunal here are unlikely to make separate awards.

b. Personal Injury. This can form part of your claim if a discriminatory act caused personal injury. There is clearly an overlap with injury to feelings.

c. Aggravated damages. Aggravated damages are awarded in the most serious cases where the behaviour of the Respondent has aggravated the Claimant’s injury.

d. Exemplary or “punitive” damages. Such an award is rare and can be awarded to punish the Respondent, rather than compensate the Claimant. This award is available in limited cases where the compensation itself is an insufficient punishment and the Respondent’s conduct is either:

i. Oppressive, arbitrary or unconstitutional action by servants of the government.
ii. Calculated to make a profit which could exceed the compensation otherwise payable to the Claimant.

Usually, unless there is also some financial loss that can be attributed to the discrimination, the usual award is injury to feelings. Many Claimants have a misconception at what can be claimed for and the usual levels. Large awards are fairly rare.


For example, you cannot claim for:

•Loss of reputation.

•Injury to feelings for each alleged act of discrimination.

•As a general rule, costs do not follow the event, so the starting point is that you are not entitled to recover your legal fees if you win (you are likely to recover the Tribunal fees).

•Stress / inconvenience.

•An apology.

See below the average awards and “bands” used to calculate injury to feelings. Even though injury to feelings is the most common award sought in discrimination claims, how the Tribunal arrive at the figure awarded is not an exact science and can be difficult to predict.


Average Awards

The following highest, mean and median awards were made by the tribunals in 2014/2015

2014/2015
HIGHEST AWARD
MEAN AWARD*
MEDIAN AWARD
Unfair Dismissal £238,216 £12,362 £6,955
Race Discrimination £209,188 £17,040 £8,025
Sex Discrimination £557,039 £23,478 £13,500
Disability Discrimination £239,913 £17,319 £8,646
Religious Discrimination £1,080 £1,080 £1,080
Sexual Orientation Discrimination £80,783 £17,515 £6,000
Age Discrimination £28,428 £11,211 £7,500

(*The mean award is calculated by finding the total value of all awards made over the year and dividing by the number of cases in which awards were made.)

(**The median award is that which is in the middle of all the awards if they are arranged in order of value.)


2013/2014
HIGHEST AWARD
MEAN AWARD*
MEDIAN AWARD
Unfair Dismissal £3,402,245 £11,813 £5,016
Race Discrimination £162,593 £11,203 £5,513
Sex Discrimination £168,957 £14,336 £8,039
Disability Discrimination £236,922 £14,502 £7,518
Religious Discrimination £22,762 £8,131 £3,191
Sexual Orientation Discrimination £27,659 £8,701 £6,824
Age Discrimination £137,000 £18,801 £6,000
2012/2013
HIGHEST AWARD
MEAN AWARD*
MEDIAN AWARD
Unfair Dismissal £236,147 £10,127 £4,832
Race Discrimination £65,172 £8,945 £4,831
Sex Discrimination £318,630 £10,552 £5,900
Disability Discrimination £387,472 £16,320 £7,536
Religious Discrimination £24,004 £6,137 £4,759
Sexual Orientation Discrimination £28,251 £10,757 £6,319
Age Discrimination £72,500 £8,079 £4,499

The Vento bands and subsequent increases
BAND
VENTO

(December 2002)

DA’BELL

(September 2009)

SIMMONS

(April 2013) and Presidential guidance (March 2014)

Top Band
for the most serious cases, such as where there has been a lengthy campaign of harassment. Awards can exceed this only in the most exceptional cases.
£15,000 – £25,000 £18,000 – £30,000 £19,800 – £33,000
Middle Band
for serious cases which do not merit an award in the highest band.
£5,000 – £15,000 £6,000 – £18,000 £6,600 – £19,800
Bottom Band
for less serious cases, such as a one-off incident or an isolated event.
£500 – £5,000 £600 – £6,000 £660 – £6,600

* Note: Simmons – that there is conflicting case law as to whether this uplift should apply in the employment tribunal (see above)


Disclaimer

This blog is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.

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