Injury to feelings awards compensate for non-economic loss. Injury to feelings awards are available where a tribunal has upheld a complaint of discrimination (see s119(4) EA 2010) or unlawful detriment, but are not available for unfair dismissal (see Dunnachie v Kingston upon Hull City Council.

Subject to the following caveat, such an award is also not available where a worker has suffered the detriment of termination of his or her contract for making a protected disclosure or for reasons related to working time protections (see s49(5A) and (6) ERA 1996), since compensation is limited to that available for unfair dismissal. The caveat is that since both injury to feelings and a basic award compensate for non-economic loss, it would appear that an injury to feelings award may be made, up to the level of an appropriate basic award had in fact the claim been brought as unfair dismissal. This approach would ensure that the availability of an injury to feelings award is not unnecessarily limited where a basic award for equivalent unfair dismissal is not available.

There are other heads of non-economic loss that may be compensated for by a tribunal (see Aggravated damages; Exemplary damages; Physical and psychiatric injury).

**Remedy
**The award of injury to feelings is intended to compensate the claimant for the anger, distress and upset caused by the unlawful treatment they have received. Its calculation is not based on any principle of punishment. Tribunals have a broad discretion as to what level of award to make, which can only be overturned on appeal if the figure chosen is obviously wrong, which will only occur very rarely.

General principles
The general principles that apply to assessing an appropriate injury to feelings award have been set out by the EAT in Prison Service v Johnson [1997] IRLR 162, para 27:

* Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator's conduct should not be allowed to inflate the award; * Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches; * Awards should bear some broad general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but to the whole range of such awards; * Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings;
Tribunals should bear in mind the need for public respect for the level of awards made.

The matters compensated for by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (see Vento v Chief Constable of West Yorkshire Police (No2).

Bands of compensation
Also in Vento the Court of Appeal identified three broad bands of compensation for injury to feelings and gave the following guidance (however, see below for revised figures):

1) 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 on the ground of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000;

2) 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;

3) 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.

Within each band there is considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.
The EAT revisited the exact boundaries of the three bands in Da'Bell v NSPCC [2010] IRLR 19 and accepted the arguments of both sides before it that the EAT should uprate the Vento guidelines in line with the RPI as follows:

1) The upper band should be £18,000 to £30,000;

2) The middle band should be £6,000 to £18,000;

3) The lower band should be £600 to £6,000.

The approach taken by the EAT appears to be that the guidelines will be updated every so often, not that the guideline figures should be recalculated by tribunals on an ongoing basis for each discrimination claim before them (see paragraph 46 of the judgment). Nevertheless, since the real value of the award is a factor the tribunal should take into account, it would seem that a tribunal would be entitled to guide itself on the basis of boundaries increased to an updated figure according to RPI.

In Simmons v Castle [2012] EWCA Civ 1288 the Court of Appeal announced that with effect from 1 April 2013, general damages in tort cases would be increased by 10% on existing levels, and the boundaries updated on that basis would be as follows:

1) The upper band would be £19,800 to £33,000;

2) The middle band would be £6,600 to £19,800;

3) The lower band would be £660 to £6,600.

The EAT in [Sash Window Workshop Ltd & Anor v King ]()UKEAT/0057/14/MC; UKEAT/0058/14/MC and [The Cadogan Hotel Partners Ltd v Ozog ]()UKEAT/0001/14/DM applied the 10% increase; however, the EAT in [Chawla v Hewlett Packard Ltd (Disability Discrimination: Reasonable adjustments)]() [2015] UKEAT/427/13/2502 addressed a broader range of arguments including that the reasons for the Simmons v Castle uplift did not apply in employment tribunals, and held that the 10% uplift to general damages which applies in the civil court does not apply to ET awards. As a matter of authority, Chawla appears to the authors to be the stronger decision.

Other relevant factors
Proof of injury: It is not inevitable that a tribunal will award an injury to feelings award where it is permitted to, though it is very unusual for no such award to be made. It is necessary for the individual to prove the nature of the injury to feelings and its extent, though this could be at its simplest the fact that a claimant has stated he was upset by his dismissal (see Murray v Powertech (Scotland) Ltd [1992] IRLR 257 and Ministry of Defence v Cannock [1994] ICR 918). The evidence a claimant will want to produce is the material which shows the impact of the discrimination on any subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression. For example, this might include evidence about the impact the discrimination has had on relationships with colleagues, friends and family and any particular difficulties caused by the discrimination. Such evidence might include medical evidence, but where the injury to feelings amounts to a mental illness such as depression, the claimant might well consider seeking an award for personal injury in addition to injury to feelings.

Double recovery: Where an individual is awarded sums both for injury to feelings and personal injury (e.g. depression) caused by the discrimination, the injury to feelings and personal injury awards must compensate for different injuries and not overlap. The consequence is that for example where discrimination has caused a period of depression, either the injury to feelings award or the personal injuries award will be less than would be appropriate if only one of the awards had been made.

Claimant's knowledge: It is not necessary for an injury to feelings award to be made that the claimant's injured feelings are caused by his knowledge that he has been discriminated against, contrary to the interpretation given to Skyrail Oceanic Ltd v Coleman [1981] IRLR 398. The EAT in Taylor v XLN Telecom Ltd [2010] IRLR 49 held that the calculation of the remedy for discrimination is the same as in other torts, and that knowledge of the discriminator's motives was not necessary for recovery of injury to feelings. The EAT nevertheless observed that the distress and humiliation suffered by a claimant will generally be greater where the discrimination has been overt or the claimant appreciates at the time that the motivation was discriminatory.

Separate awards for separate grounds of discrimination: Where an individual has suffered a number of acts of discrimination, some caused by one protected ground, e.g. race, others by another protected ground, e.g. disability, the tribunal should make separate awards for each protected ground, as each is a separate wrong giving a right to damages (see Al Jumard v Clywd Leisure Ltd . However, where the discriminatory acts overlap as they arise from the same set of facts, such as where a dismissal is on grounds of both race and disability, a tribunal will not be expected to separate the injury to feelings and attribute parts to each form of discrimination. This may not necessarily result in an increased award compared to the situation where all the acts of discrimination are caused by one protected characteristic, as the tribunal must always have regard to the proportionality of the overall figure awarded for injury to feelings.

Future contingencies: Where the discriminatory act, such as a dismissal, would have occurred at some point in the future for legitimate reasons in any event, it is not appropriate to reduce the injury to feelings award to reflect that future possibility. The award reflects the injury to feelings caused by the knowledge that the reason for the act was discrimination, which cannot be offset by the fact that a lawful dismissal may have been carried out in any event (see O'Donoghue v Redcar and Cleveland Borough Council .

The severity of the act of discrimination: The Vento guidelines connect the level of an award to the severity of the discrimination. In Voith Turbo Ltd v Stowe [2005] IRLR 228 the EAT observed that a discriminatory dismissal is not to be considered as a one off event, but should fall within the middle Vento band. In particularly serious cases of discrimination, an award of aggravated damages may be available (see Aggravated damages and Exemplary damages).

Adjustments: Interest can be awarded on the sum for injury to feelings (see Interest). Reg 6(1)(a) IT(IADC) Regs 1996 provides that the period over which interest accrues begins with the date of the discrimination and ends on the date the tribunal calculates compensation.
A percentage increase or reduction up to a maximum of 25% can be applied to reflect a failure by the employer or employee to comply with the ACAS disciplinary code of practice (see ACAS).

A Polkey-type deduction should not be applied to the award, even if the claimant would have been fairly dismissed at a date soon afterwards (O'Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615).

Tax: It is widely understood that an award for injury to feelings in a discrimination case is not taxable and so therefore should not be grossed up (see Walker v Adams [2001] STC 101, Orthet Ltd v Vince-Cain (2) [2004] UKEAT/0801/03 and Oti-Obihara v Commissioners for HM Revenue & Customs. However, the issue is not clear cut as HMRC's Employment Income Manual states that awards for discrimination arising out of termination, including injury to feelings, should be taxed under s401 ITEPA. Also, in [Moorthy v The Commissioners for Her Majesty's Revenue & Customs]() [2014] UKFTT 834 (TC) (where the claimant accepted £200,000 in compromise of his claim of age discrimination and argued that none of it was taxable), the tax tribunal ruled that the payment of £200,000 in its entirety was made 'directly or indirectly in consideration or in consequence of, or otherwise in connection with' the termination of Mr Moorthy's employment, and therefore fell within ITEPA s401. Whether or not the payment was also to compensate Mr Moorthy for discrimination, unfair dismissal, injury to feelings, redundancy and/or financial loss was immaterial.

But the EAT in [Timothy James Consulting Ltd v Wilton ]()UKEAT/0082/14/DXA followed Orthet Ltd v Vince-Cain and Oti-Obihara v Commissioners for HM Revenue & Customs, not Moorthy, and ruled that the injury to feelings figure should not be taxed and therefore should not be grossed up.

Awards for injury to feelings arising from discrimination that is not connected to dismissal will not be subject to tax.

Recoupment: N/A

Relevant case law: A v HM Revenue & Customs [2009]; Al Jumard v Clywd Leisure Ltd [2008] IRLR 345; Chawla v Hewlett Packard Ltd (Disability Discrimination: Reasonable adjustments) [2015] UKEAT/427/13/2502; Da'Bell v NSPCC [2009] UKEAT/0227/09; Dunnachie v Kingston upon Hull City Council [2004] IRLR 727; Ministry of Defence v Cannock [1994] ICR 918; Moorthy v The Commissioners for Her Majesty's Revenue & Customs [2014] UKFTT 834 (TC); Murray v Powertech (Scotland) Ltd [1992] IRLR 257; O'Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615; Orthet Ltd v Vince-Cain (2) [2004] UKEAT/0801/03; Oti-Obihara v Commissioners for HM Revenue & Customs [2011] IRLR 386; Prison Service v Johnson [1997] IRLR 162; Sash Window Workshop Ltd & Anor v King UKEAT/0057/14/MC; Skyrail Oceanic Ltd v Coleman [1981] IRLR 398; Taylor v XLN Telecom Ltd [2010] IRLR 49; The Cadogan Hotel Partners Ltd v Ozog UKEAT/0001/14/DM; Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871; Voith Turbo Ltd v Stowe [2005] IRLR 228; Walker v Adams (SpC344)

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* 2015-16 out now! Click here to order your copy. * Updated annually * Covers over 100 remedies available in the Employment Tribunal * 40 useful tables also included and updated each year * A4, spiral bound for portability and ease of use * 160 pages

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