Injury to Feelings - Court of Appeal

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The Court of Appeal has handed down its decision in Vento v Chief Constable of West Yorkshire Police (CA, 20th December 2002).

This is likely to become the lead case on the assessment of damages in discrimination cases.


Facts

Ms Vento always wanted to be a police officer. She was initially prohibited from joining the force due to the height requirement. When this requirement was relaxed in 1995, she joined the force as a probationary constable, aged 28. At that time, she was married with three children.

After about two years, a series of incidents occurred which led to a number of criticisms being made of her, eventually leading to her dismissal on grounds of lack of honesty and lack of performance. The employment tribunal found this was less favourable treatment which would not have occurred if Ms Vento were a man, and found in her favour on liability for sex discrimination.


Injury to Feelings

The employment tribunal noted she had been put through "four traumatic years" of bullying, leading to clinical depression. She then had the "shock and disappointment" of dismissal, a total of 22 days in the tribunal "in which her private life was subject to minute scrutiny", the uncertainty of an appeal on liability and the loss of "a satisfying and congenial career". They awarded £50,000 for injury to feelings.

The Employment Appeal Tribunal held this was plainly excessive, having regard to authorities such as Tchoula v ICTS and Armitage v Prison Service. It halved the award, substituting a figure of £25,000 for injury to feelings.

The Court of Appeal agreed that £50,000 was plainly too high. Mummery LJ, giving the leading judgment, stating that:

"45. This is the first time for many years that the Court of Appeal has had the opportunity to consider the appropriate level of compensation for injury to feelings in discrimination cases..."

Mummery LJ went on to point out that the total award to Ms Vento of £74,000 (which included the award for aggravated damages and personal injury general damages):

"61. ...is in excess of the JSB Guidelines for the award of general damages for moderate brain damage, involving epilepsy, for severe post-traumatic stress disorder having permanent effects...and for total deafness and loss of speech. No reasonable person would think that that excess was a sensible result. The patent extravagance of the global sum is unjustifiable as an award of compensation."

He set out three bands of damages for injury to feelings (at paragraph 65):

"i. The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment...This case falls within that band...

"ii. The middle band of between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.

"iii. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings."

The Court of Appeal accordingly substituted an award for injury to feelings of £18,000.


Aggravated Damages

The employment tribunal thought the police force's conduct to be high-handed, warranting an award of aggravated damages. Reasoning included that no apology had been made by the officers concerned, that the police force had unreasonable condemned Ms Vento as dishonest, that the Deputy Chief Constable attended the tribunal to apologise, but when questioned it transpired he had not read the tribunal's decision and did not know what he was apologising for.

The employment tribunal awarded £15,000, on top of the £50,000 for injury to feelings, as aggravated damages.

The Employment Appeal Tribunal thought this was too high, and substituted an award of £7,000.

The Court of Appeal again had regard to the totality of the award compared with damages in personal injury cases. It reduced the award yet further, to £5,000


General Damages for Personal Injury

Ms Vento developed clinical depression and an adjustment disorder, which lasted for three years. Basing its decision on the JSB Guidelines, the employment tribunal awarded £9,000. The EAT held this a reasonable assessment and did not interfere. It did not form part of the appeal to the Court of Appeal, and therefore stands.


Damages for Future Loss of Earnings

The employment tribunal awarded Ms Vento £165,829 for future loss of earnings, on the basis that she was now only able to work in a clerical capacity, whereas if she had not been driven out the police force there was a 75% chance she would have remained there until retirement.

The EAT overturned this. It stated that the employment tribunal had failed to give sufficient regard to statistics showing that only 9% of female police constables remain in the police force for 18 or more years.

The Court of Appeal reinstated the employment tribunal's award. It held that the employment tribunal had taken that statistic into account, but rejected it on various grounds (including that the statistics were out of date, relating to a period before the police force introduced family friendly policies, and also that Ms Vento was incapable of having more children and therefore she was different from other female police officers who might give up their careers to have children). This section of the judgement is really a decision on the facts and does not lay down any principle of law.