I am often asked what are the main differences between a discrimination law claim and a claim of so-called “ordinary unfair dismissal”?

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A sensible question but one that has many potential answers!  The first key point is that there is no qualifying service requirement to bring a discrimination claim.  This is sometimes described as a day one right, however the right to pursue a discrimination claim goes further than this in that a person may bring a claim relating to a successful recruitment process so even before their employment has even started. Discrimination claims can also be brought against named individual employees as well as the employer and, in the event of a successful claim, liability can be joint and severable. In another uncomfortable fact, claimants can, and frequently, do pursue claims whilst remaining in employment and therefore their management raises several other complex issues of ongoing management.

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The key difference, in my view, is that damages for successful discrimination claims are potentially unlimited and therefore can be much more expensive than an “ordinary unfair dismissal” where all elements of any award are subject to statutory restrictions.   The impact of this difference can be seen in the Employment Tribunal report and statistics. In the latest statistics available the average ordinary unfair dismissal compensation award across the year 2022 was £13,541 whereas the highest award for unfair dismissal involving discrimination was £165,000.  

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One explanation for this difference is that damages for ordinary unfair dismissal cases exclude any compensation for the emotional distress caused by the unfair treatment.  In contrast, successful claimants in discrimination cases can claim for the emotional distress the discrimination has caused them.  This is known as“Injury to feelings” and is a reason why a current employee, who remains in employment, and has seemingly suffered no financial losses, can still be entitled to receive compensation.

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EmploymentTribunals have a broad discretion as to the amount they award for injury to feelings.  The claimant will bring evidence as to how the discrimination made them feel.  They may call supporting evidence from family, friends and medical practitioners as to the impact of discrimination on them.  Since 2003, Employment Tribunals have adopted the guidance known as the Vento Bands.  These set out three broad bands of compensation for injury to feelings awards. The Vento bands are distinct from compensation awards for psychiatric or similar personal injury.

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The Vento Bands are updated on an annual basis. The Vento Bands will apply to new discrimination claims presented from 6 April 2024.  The new bands will be a lower band of £1,200 to £11,700 for less serious cases, a middle band of £11,700 to £35,200 for cases that do not merit an award in the upper band and an upper band of £35,200for the most serious cases – with the most exceptional cases capable of exceeding £58,700. One-off incidents or remarks tend to fall within the lower band whilst sustained verbal and sometimes even physical abuse falls within the middle and even upper band, but each case turns on its own facts.

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We are always happy to have an initial discussion – please do get in touch with Catherine Wilson to find out how FMGS can help you.