News Updates

Injury to feelings

Wednesday 19th June 2019

The EAT, in Base Childrenswear Limited v Otshudi, confirmed that an injury to feelings award for a single act of discrimination is not limited to the lower Vento band.

Miss Otshudi was dismissed and brought a claim alleging 6 acts of racial harassment during her employment and a further act in respect of her dismissal. Her dismissal claim was upheld, with the ET finding that BC Limited had lied about the reason for dismissal.

The ET made awards for loss of earnings, injury to feelings, aggravated damages and personal injury, along with an uplift for failure to comply with the ACAS code. The ET considered that an injury to feelings award in the middle Vento band was warranted and awarded £16,000, noting that Miss Otshudi had been a good performer, she had invested time and money into her career and her dismissal had come out of the blue.  

BC Limited appealed on the basis that the awards were “manifestly excessive” and argued that the ET had placed the injury to feelings award in the wrong Vento band, as it had only been found responsible for one isolated act of discrimination.

The EAT rejected the appeal, noting that BC Limited had acknowledged the serious nature of the discrimination and that the ET had wide discretion when assessing injury to feelings. While it is relevant to consider if the discrimination forms part of a continuing course of conduct or was an isolated or one-off act, this is not conclusive and each case will turn on its own facts.   The EAT said the question for the ET “must always be what was the particular effect on this individual complainant?” and was satisfied that the ET had not erred in this case.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.