Quantifying Injury to Feelings

Eddie_Stobart_Ltd_v_Miss_Caitlin_Graham__2025__EAT_14.pdf

What is injury to feelings?

Unlike unfair dismissal compensation, which is limited to financial loss, discrimination compensation can also cover non-financial losses. In most cases, this will include an injury to feelings award. The Equality Act 2010 expressly provides that compensation for discrimination may include, or be made up entirely of, compensation for injured feelings. A Claimant can recover for injury to feelings even when they have suffered no financial losses.

Neither the Equality Act or any previous discrimination legislation provides guidance as to how a tribunal should evaluate injured feelings financially. It has been left to the tribunals and courts to provide guidance. The basic principle is that awards for injury to feelings should not be so high as to amount to a windfall, but neither should they be so low they diminish respect for the law.

In the case of Vento v Chief Constable of West Yorkshire Police, the Court of Appeal set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards:

The low band for “less serious cases, such as where the act of discrimination is an isolated one-off occurrence” (currently £1200 – £11,700)

The middle band for “serious cases, which do not merit an award in the highest band.” (currently £11,700 - £35,200)

The top band for “the most serious cases, such as where there has been a lengthy campaign of discrimination”. This should be awarded in “the most exceptional case” (currently £35,200 – £58,700).

What is the significance of this Employment Appeal Tribunal decision?

The EAT has found that the Employment Tribunal erred in law by awarding the claimant a “manifestly excessive” amount of compensation, £10,000, for injury to her feelings, and further by failing adequately to explain why it awarded the amount it did. Compensation in the amount of £2,000 (plus interest) was substituted by the EAT. The EAT then provided some guidance for employment tribunal’s when they are quantifying injury to feelings awards, which is useful for organisations to be aware of.

How to quantify injury to feelings

Whilst the burden is on the Claimant to show that their feelings have been injured and to what extent, it is useful to understand what a tribunal will consider when making this award.

·         Evidence of the injury will give the tribunal “more to go on”.

·         The claimant’s description of their injury: how did the unlawful treatment make them feel?

·         Duration of consequences: “There may not be a linear recovery path; there may be an acute stage, a recovery stage and residual symptoms”, however, a Claimant will be expected to say how they are feeling at the remedy hearing, even if time has passed since the conduct complained of. If injured feelings continue, the tribunal should consider how long they may continue to last, as well as how they are being manifested.

·         Effect on past, current and future work: “An evidenced wish to leave an enjoyable and fulfilling line of work due to discriminatory treatment can properly inform the tribunal’s assessment of the hurt caused.”

·         Effect on personal life or quality of life: The tribunal may consider whether the treatment has adversely impacted personal relationships, private activities, hobbies and the like. The tribunal may “survey an evidential landscape comparing the Claimant’s life before and after the discrimination.” A third-party view may be helpful in these cases, for example from a family member, but “the tribunal must decide what weight it gives to such evidence.”

 The EAT also suggested that a tribunal may find it helpful to “consider the existence of ridicule or exposure. Discrimination played out in front of colleagues or others to see may well cause greater harm. It may provide a reasoned basis for inferring as a fact the seriousness of the injury suffered, especially in respect of compensable feelings of humiliation.”