Discrimination compensation guide 2006: Introduction

Sue Johnstone introduces the EOR Guide to Compensation in Discrimination Cases 2006.

The first edition of this guide was well received, and is already becoming an indispensable tool for discrimination law practitioners. Anyone involved in tribunal proceedings, or in negotiating a settlement, in relation to potential discrimination can now check what level of damages could be awarded using guidance from previous employment tribunal awards. This edition of the guide analyses all cases of discrimination where compensation was awarded in 2005, giving detailed facts and figures as well as case summaries of selected cases.

In Hardy & Hansons plc v Lax (No.2) (28 November 2005; appeal no.UKEAT/0700/04) the EAT referred to The EOR Guide to Compensation in Discrimination Cases. Mr Justice Burton, then president of the EAT, commented that "it [the EOR Guide] can be a helpful tool, particularly for an appellate tribunal dealing, as we are dealing, with a decision in respect of which other criticisms are made. We are not suggesting that every employment tribunal dealing with discrimination compensation should be required to trawl through this guide before it arrives at its decision … What, no doubt, will be done, however, is that the practitioners will look at the EOR Guide and see how far they are able to assist a tribunal by similar or dissimilar cases." He recognised that although tribunals are not bound by the decisions of other employment tribunals, this is not an easy area, even within the bands, never mind to decide which band a particular case should be in. He added: "We have certainly been assisted by the EOR Guide on this appeal."

Mr Justice Burton does raise a point of caution. Our guide can provide only summaries of relevant tribunal decisions, which can then be used to illustrate the decisions being made by tribunals. Mr Justice Burton recommends that practitioners "obtain the copies of the decisions which are drawn to their attention by the guide". This has been addressed, and transcripts of all the cases summarised in this guide will be available online to subscribers to Equal Opportunities Review and XpertHR (for details of subscriptions to these services contact customer services on 0845 671 0001).

As in the first edition, the guide is in three sections. Section 1 provides a comprehensive explanation of the legal principles that apply in the assessment of compensation. This is up-to-date as at 1 August 2006. Section 2 gives the facts and figures. It consists mainly of tables showing the median, average, minimum and maximum awards under a number of headings, as well as the number and proportion of awards falling under each head of compensation. This data is based on all awards in discrimination cases made in 2005.

The third section provides summaries of employment tribunal decisions under each jurisdiction and arranged under various heads of compensation. Injury to feelings awards are presented under each of the three Vento bands, so that advisers and representatives can easily see the types of cases that fall within each band, and the reasons given by tribunals for the awards that they make. There are also summaries of awards for aggravated damages, personal injury, individual liability, and financial loss. The latter covers loss of earnings to the date of the tribunal hearing, future loss of earnings, pensions and other expenses.

We would add our own word of caution about use of these case summaries. The assessment of compensation is not an exact science and, as the EAT has pointed out, it is a difficult area for tribunals. In our analysis of all the cases, it has become clear that there is still a lack of consistency in the tribunals' awards.

A number of tribunals appear to take account of the behaviour or intentions of the respondent in assessing the extent of injury to feelings. However, the EAT has made it clear in Corus Hotels v (1) Woodward (2) Rushton (see Section 1) that the tribunal's own feelings of indignation at the respondent's behaviour should not form part of an award for injury to feelings. It is important, therefore, when using the tribunal decisions, to ensure that there is no subsequent appeal decision that establishes a contradictory binding principle. The legal section sets out the binding principles, and Equal Opportunities Review regularly updates subscribers on the latest EAT and appeal court decisions.

Sue Johnstone, Editor
August 2006