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Harassment claims and the "Vento" guidelines
Where an employment tribunal finds that an employee has suffered discrimination, harassment or victimisation, the award will be partially made up of injury to feelings. The injury to feelings awards are based on the “Vento” guidelines. These were developed in the case of Vento v Chief Constable of West Yorkshire Police 2003 in the Court of Appeal and are as follows:
- a lower band of £900 to £8,800 for less serious cases
- a middle band of £8,000 to £26,300 which are for cases that do not merit an award in the upper band; and
- an upper band of £26,300 to £44,000, for the most serious cases, with the most exceptional cases capable of exceeding £44,000.
Typically, a one off act of harassment would fall within the lower band for compensation. However, a recent case has demonstrated that these are just guidelines and that the tribunal is able to award compensation outside the vento guidelines where appropriate.
In the case of Base Childrenswear Ltd v Otshudi the Employment Appeals Tribunal (EAT) considered whether the Employment Tribunal (ET) had been correct to make an award in the middle Vento band in respect of a claimant’s injury to feelings by a one-off act of racial harassment.
The injury to feelings award was placed within the middle bracket of Vento at £16,000. The Respondent appealed on the basis that the ET had placed the injury to feelings award in the wrong band. The Employment Appeals Tribunal held that the Vento bands were not prescriptive and any injury to feelings award was fact sensitive. The EAT noted that “the question for the ET must always be, what was the particular effect on this individual complainant?” The EAT held that the ET’s findings of fact in this case, had permissibly concluded that this was a serious matter, that gave rise to an injury to feelings award falling within the middle Vento bracket and that there was, therefore, no proper basis upon which the EAT could interfere with the award made.
This is an important case for employers to be aware of. It demonstrates the seriousness of harassment as well as the potential implications that can occur regarding a single incident. Employers should ensure that they have strict policies in place in relation to harassment as well as a clear accessible grievance procedure. Any complaints made by employees in relation to harassment should be dealt with without delay and in line with the grievance procedures. The same procedure must always be followed regardless of whether the individual is raising a complaint in relation to a single incident or multiple incidents.
If you have any questions or require any advice or guidance regarding this topic please contact a member of the Napthens Employment Team.