Stretching the Vento Bands: Discrimination and Whistleblowing Compensation Increased
Key Contact: Claire Knowles
Author: Adam McGlynn
To what extent are your feelings and mental health affected by the actions of those around you? Perhaps you consider yourself to be more resilient than most, or perhaps more sensitive. With this in mind, to what extent could that impact be quantified as a monetary value? These are the difficult questions employment tribunals must struggle with in order to compensate successful claimants in discrimination and whistleblowing matters by way of an award for injury to feelings and psychiatric injury.
What are Vento Bands?
There is no statutory guidance for injury to feelings or psychiatric injury awards and so tribunals and courts have had to develop and pass down their own guidelines. This led to the establishment of the Vento bands following the 2002 Court of Appeal case of the same name. These bands provide a basic framework for valuing the compensatory awards which has been further developed and built upon through case law over the last two decades. On 26 March 2021, President of the Employment Tribunals (England and Wales) Judge Barry Clarke and the President of the Employment Tribunals (Scotland) Judge Shona Simon released a joint addendum to the Vento band guidance which sets out updated values for claims presented on or after 6 April 2021. The new figures for each Vento band are set out below:
Lower Band (£900 – £9,100)
The lower band is for less serious cases, such as isolated, one-off incidents.
Middle Band (£9,100 – £27,400)
The middle band is for more serious cases where mitigating factors mean an award in the highest band is not warranted.
Upper Band (£27,400 – £45,600)
The upper band is for the most serious cases, for example where offences were long-term campaigns and had significant consequences for the claimant.
Beyond the Vento Bands (£45,600 +)
It is possible to exceed the upper band, however, the existence of these guidelines means that only the most exceptional cases would give rise to such a high compensatory award.
Choosing the Right Band
Case law has gradually developed over time to assist tribunals when assessing and valuing injury to feelings and psychiatric injury awards. The effect on the claimant is the most important factor and so tribunals will take into consideration evidence demonstrating the vulnerability of the claimant, physical and mental health consequences of the offence such as stress, anxiety, and panic attacks, and to what extent their career or personal life has been impacted.
If you would like further advice on discrimination or whistleblowing matters and/or how to assess potential liability, please contact our Employment Team.