EAT Guidance on the level of injury to feelings awards at tribunal: when are they excessive?

In the case of Eddie Stobart v Graham, the Employment Appeal Tribunal (EAT) provided guidance on how the Employment Tribunal (ET) should measure the ‘degree of upset’ when awarding damages, specifically for injury to feelings; and upheld the employer’s appeal which characterised the original tribunal award as “manifestly excessive”.

Background

The claimant, Ms Graham, was employed as a planner at one of the respondent’s depots in Scotland. Shortly after the claimant became pregnant, the respondent announced that it would be closing its planning department in Scotland, and that this would include a redundancy process which the claimant would be part of. Given that she was about to go on maternity leave, the claimant asserted her right to be offered suitable alternative employment in preference over other employees, in accordance with Regulation 10 of the Maternity and Parental Leave etc Regulations 1999. It was ultimately decided by the respondent that the new roles, for ‘Transport Shift Managers, were not suitable for the claimant, and therefore she was required to attend a competitive interview. She was unsuccessful.

The claimant sent a grievance about the matter to the relevant manager. She attended her final consultation meeting and referred to having sent the grievance. The manager had not seen it, and suggested that she re-send it. The claimant received notice of termination of her employment that same day. She re-sent the email grievance, but it transpired that the two emails had been blocked by the respondent’s firewall, and had never been received or read.

The ET Claim

The claimant presented a claim for unfair dismissal, victimisation and detrimental treatment by discrimination, in relation to her pregnancy / maternity leave.

The ET unanimously decided that Graham had not been unfairly dismissed, agreeing with the respondent that the new vacancies were not suitable for her. It also dismissed the claim of victimisation.

However, it upheld the complaints of detrimental treatment, finding that the respondent failed to take adequate steps to deal with the claimant’s grievance. Although the respondent’s explanation about the firewall was accepted, it was not enough and they should have acted more effectively on the claimant’s assertions that she had raised a grievance on several occasions, especially as a person about to go on maternity leave and who had now lost her job.

As the claim had only succeeded in part, the claimant’s award was limited to injury to feelings (rather than the loss of earnings etc. she would have received if her unfair dismissal claim had succeeded). Having regard to the ‘Vento bands’, which are explained below, the ET concluded that the award should be £10,000.

The Appeal

The respondent’s appeal did not concern liability; it was solely focused on the ET’s decision to award £10,000, which it argued was “so excessive as to be perverse”. It also complained that the award was “insufficiently reasoned”. In support of its appeal, the Respondent argued that:

• the failure to deal with the grievance was an isolated incident, and did not have anything at all to do with the claimant’s pregnancy or maternity leave; and
• the award was disproportionate to the “degree of upset” that the claimant had suffered.

The EAT considered the ET’s application of the Vento guidelines for injury to feelings awards. These guidelines were first set out by the Court of Appeal in 2002 and are updated annually in April to take account of inflation. At the time the claim was presented, the Vento bands were as follows:

• The upper band (£29,600 - £49,300) should be awarded for the most serious cases, characterised by the example of a lengthy campaign of discriminatory harassment on the grounds of sex and race
• The middle band (£9,000 - £29,000) is for serious cases which do not merit the highest band
• The lower band (£990 - £9,9000) is appropriate for less serious cases, such as an isolated or one-off occurrence.

They are currently

Upper Band – £35,200 - £58,700
Middle Band – £11,700 - £35,200
Lower Band - £1,200 - £11,700

When it came to evidence of injury, the EAT provided guidance, falling short of describing it as a checklist, to factor in when working out what level of award is appropriate for injury to feelings:

• The claimant’s description of their injury
• Duration of consequences
• Effect on past, current and future work
• Effect on personal life or quality of life

When applying those principles to this case, the EAT found that the award was indeed manifestly excessive so as to be perverse. There was limited evidence of the claimant’s injury; it was not deemed to have endured beyond the immediate experience of the detriment. The injury did not appear to have an adverse effect on her work, and she in fact found alternative work immediately. There was also no finding of any impact on her personal life and quality of life owing to the injury.

In considering the nature of the discriminatory treatment, the EAT found that it was not overt; there was no indication that the respondent’s failure to receive and read the grievance had any relation to her maternity leave. It was an isolated incident, and the consequences were limited in scope and impact.

The EAT also found that the ET had failed in its explanation of the award, and why it had settled on that figure given the facts and the Vento test. The proper award was then determined to be £2,000, in light of the nature, extent and duration (or lack thereof) of the claimant’s injury. The sum would have been lower, but for the fact that the claimant had to continually chase up on a formal grievance process when she was due to be on maternity leave.

Comment

In its decision in this case, the EAT has provided useful further guidance about the application of the Vento bands to any set of given facts.

The case also serves as a reminder to employers about the specially protected position of pregnant employees (and those on maternity, shared parental or adoption leave) in a redundancy situation. In essence, these employees are entitled to be prioritised for any suitable alternative vacancies that exist and, since April 2024, this protection extends for a further 18 months after the birth (or adoption) of the child. We set out our article on these extended protections.