REWARD INSIGHT
Compensation, harassment, discrimination
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Komeng V Creative Support Ltd In this case, the employment appeal tribunal (EAT) ruled that when determining compensation for injury to feelings in discrimination cases, it is not only one-off acts that fall into the lower Vento band. The claimant, who described himself as a ‘black African’, had worked for the respondent as a ‘waking night carer’ since June 2011. During this time, he had asked to be enrolled onto a level 3 NVQ (National Vocational Qualification) course as part of his ongoing development. However, the respondent failed to take any steps to enrol him on such a course, despite the fact that his colleagues of a different race were provided the opportunity to do so. In addition to this, the claimant was regularly made to work weekend shifts, despite his colleagues often receiving weekends off. This arrangement was not changed even though he raised this issue with the respondent. The claimant believed this treatment equated to direct race discrimination and brought this claim to an employment tribunal (ET). The ET upheld his claim
and, finding that he had been subjected to detrimental treatment on account of his race, awarded him compensation. When calculating the compensation, the ET saw fit to award an additional sum for injury to feelings, the amounts of which are divided into three ‘Vento bands’ (http:// bit.ly/2oRiWr9) based on the severity of the incident. The ET found that the fact the claimant had continued to work for the respondent for several years despite not being enrolled onto the course indicated that the distress he suffered was not significant. They also found no evidence to suggest the claimant would have been automatically promoted had he been able to complete the course, meaning there was no proof he would have suffered any further detriment. Therefore, in the tribunal’s view the claimant’s compensation for injury to feelings fell towards ‘the top of the lower band’, awarding him £8,400 for injury to feelings. However, the claimant appealed this decision, arguing that the award was too low and should have instead fell somewhere within the middle Vento band. It was then up to the EAT to
determine if the claimant’s assertion was correct; however, having reviewed the evidence available to them the EAT dismissed the appeal. Despite the claimant pointing to repeated instances of detrimental treatment, the EAT held that when determining injury to feelings compensation, the consideration is the effect of the conduct on the claimant rather than looking at the gravity of the respondent’s actions. It is therefore determined that it is not only one-off acts that could fall within the lower Vento band. This case acts as a useful commentary of the intricacies of Vento banding when it comes to injury to feelings compensation. The bands are in place to help decide on compensation figures for: less-serious cases, serious cases, and very-serious cases, respectively. Although serious cases typically involve ongoing discrimination, this case confirms that there is no hard and fast rule that the lower band is only appropriate for one-off acts. Raj v Capita Business Services Ltd In this recent case the EAT was tasked with assessing whether the act of a manager massaging her subordinate’s shoulders amounted to unwanted conduct of a sexual nature. The claimant worked as a customer
...effect of the conduct on the claimant rather than looking at the gravity of the respondent’s actions
| Professional in Payroll, Pensions and Reward | December 2019 - January 2020 | Issue 56 30
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