Tell me where it hurts

In Komeng v Creative Support Limited, the Employment Appeal Tribunal (EAT) confirmed that the main consideration when calculating an injury to feelings award is the effect of unlawful discrimination on the Claimant, rather than the gravity of the Defendant’s act.

Background

Mr Komeng, who describes himself as black African, was employed by Creative Support Limited (CSL) as a Waking Night Care Worker in 2013.

In 2015, Mr Komeng agreed to work weekend shifts on a temporary basis to assist CSL whilst they were in the process of recruiting new staff. Although staff had been recruited, Mr Komeng continued to work weekends with no offer of support. As a result, he submitted a flexible working request in order to match the work patterns of his colleagues. However he was informed that he could not change his shift patterns, as it was likely that other employees would not agree to alter their working pattern.

Additionally, during his time at CSL, Mr Komeng informed his employer that he would like to be enrolled on a QCF Level 3 course in order to obtain better qualifications. However these requests were not fulfilled. When his colleagues – whom were of a different race – reached their mid-probation review, they were enrolled on to the course as there was funding available. This led to Mr Komeng making the request again, but was told that the qualification was limited to senior workers therefore was unable to apply.

As a consequence, Mr Komeng raised a formal grievance with CSL however this grievance was dismissed. The outcome was appealed, but again this was unsuccessful.

Employment Tribunal

Mr Komeng decided to bring an employment Tribunal (ET) claim on the basis of direct racial discrimination. The ET found that the failure to provide Mr Komeng with more flexible hours and to enrol him on the QCF Level 3 Courses amounted to direct racial discrimination.

He was awarded compensation for injury to feelings and granted an award near the top of the lower Vento band, amounting to £8,400 although no claim for interest was submitted.

Employment Appeal Tribunal

Mr Komeng decided to appeal to the EAT on the basis that:-

• there was a failure to award interest on the compensation
• the award should have fallen within the middle Vento band
• there was a failure to provide a 10% uplift in accordance with case law.

The EAT held that the ET had failed to calculate interest on the compensation award granted to Mr Komeng therefore was awarded an alternative amount of £12,757 which incorporated the interest and uplift due.

However, the EAT held that the ET had applied the correct assessment of the Vento band stating that “They have reminded themselves of the relevant case law and that: the focus should be on the actual injury suffered by the Claimant and not the gravity of the acts”.

Our thoughts

It is important to remind ourselves that the impact of discrimination is an individual experience and so will affect everyone differently. Therefore, this factor should be taken into consideration more than the act of the Defendant when assessing the amount of compensation.

In discrimination claims, employees can claim an award for ‘injury to feelings’ under the Equality Act 2010. They are intended to reflect the injury to feelings that the employee has suffered, rather than being a punishment to the employer. When assessing the level of compensation, the Vento bands are used, which set clear guidelines for the amount of compensation to be given. They set out three bands of potential awards which are as follows:-

To ensure that no discrimination claims arise from the workplace, it is essential to have an unambiguous equal opportunity policy which sets out clear and simple terms about what is/isn’t acceptable behaviour.

It is also helpful to offer a variety of training, including equality and diversity and anti-bullying training, in order to encourage greater awareness and an understanding of different protected characteristics that could potentially be discriminated against and give rise to a complaint or claim.