Following a finding of a one-off act of discrimination, is a tribunal limited to making an injury to feelings award within the lowest Vento bracket?
No, held the EAT in Base Childrenswear Ltd v Otshudi.
The tribunal upheld one of the Claimant's alleged seven acts of racial harassment. That act related to her dismissal. The tribunal made awards for injury to feelings, loss of earnings, interest, aggravated damages and personal injury, plus a 25% uplift for failure to comply with the ACAS code. The injury to feelings award was placed within the middle bracket of Vento, at £16,000.
The Respondent appealed on the basis that the awards made were manifestly excessive. Amongst other heads of appeal was that the injury to feelings award was made in the wrong Vento bracket in circumstances where it was a one-off act of discrimination. Perhaps unsurprisingly, the EAT held that the Vento bands were not prescriptive and any injury to feelings award was fact sensitive. Although relevant, whether the act is a one-off or amounted to a course of conduct is not determinative. The EAT noted that, "the question for the ET must always be what was the particular effect on this individual complainant?".
Thanks to Caroline Jennings of No 5 Chambers for preparing this case summary.