The EAT has recently considered the case of Shakil v Samsons Ltd. The Claimant brought a claim for pregnancy discrimination in the tribunal which was successful, however she argued that the tribunal’s assessment of her injury to feelings award was inadequate.
In this case, the Claimant, after working for the Respondent for around six months, was absent from work due to ‘morning sickness’. Following this, the Respondent reduced the Claimant’s hours of work without notice, criticised her capability and conduct, placed her at risk of redundancy and ultimately, one month before she was due to commence maternity leave, dismissed her.
The tribunal found that the Respondent’s actions were because of the Claimant’s pregnancy related illness. It was held that the redundancy was a sham, motivated by the Claimant’s pregnancy. It awarded the Claimant £5,000 for injury to feelings.
However, the tribunal made no mention of Vento bands (the guidelines used to determine compensation for injury to feelings) and also failed to assess or determine where the Claimant’s injury to feelings well within those bands.
The EAT concluded, on appeal, that the tribunal’s assessment of injury to feelings was “totally flawed” as there had been a complete failure to apply the Vento guidelines. In particular, the tribunal did not:-
- Identify the evidence given by the Claimant about the injury to feeling she had suffered as a result of the discrimination;
- Make any findings of fact about the injury to feeling suffered;
- Refer to Vento and/or any statutory provision or authority relevant to assessing injury to feeling;
- Identify the relevant Vento band for the claim in Presidential Guidance or state which band the injury to feeling fell within;
- Explain why the injury to feeling award made was within a particular band.
When considering the case, the EAT did not make an alternative injury to feeling award, and the case was instead remitted to a fresh tribunal to make a determination on remedy. However, it was clear that the EAT felt that the initial injury to feeling award had been inadequate, due to its comment that ‘this was not a case in which there was one-off treatment that would be likely to result only in limited injury to feelings’.
It remains to be seen what injury to feeling award the fresh tribunal will make. However, it seems likely that it will be more than the £5,000 initially awarded.
