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Employers: Why injury to feelings claims could affect you and your business

An injury to feelings claim can be made as part of a discrimination claim. It is a claim for compensation for the upset, distress or anxiety that an employee might have suffered as a result of discrimination.

Injury to feelings claim in context: Base Childrenswear Ltd v Otshudi UKEAT/0267/18/JOJ

In this case the claimant worked for a company for 3 months before they were called into a meeting without notice and dismissed.

The company stated it was on grounds of redundancy. The claimant believed it was due to their race. Following the dismissal, the claimant raised a grievance and appeal, the company did not respond.

The claimant also brought a claim of racial harassment to the employment tribunal. There was evidence and witness statements that derogatory racial statements were made during their employment.

When an employee has suffered discrimination, harassment or victimisation the employment tribunal can award compensation for the following:

  • Injury to feelings
  • Personal injury
  • Financial losses arising from the discriminatory act

The outcome of this case resulted in the claimant being awarded:

  • £3,505 in respect of loss of earnings
  • £16,000 for injury to feelings
  • £5,000 for aggravated damages – the business failed to respond to the claimant’s grievance and appeal
  • £3,000 for personal injury – the claimant suffered depression in the 3 months after dismissal
  • An uplift of 25% due to the claimant following ACAS Code – 25% of £27,520

What can you do to prevent this happening in your business?

The ACAS Code is there to provide practical guidance for employers to fairly carry out disciplinary procedures. The main thing to remember is to follow the correct disciplinary and grievance procedures set out by ACAS.

This will help to evidence the reason for dismissal and defend any allegations suggesting otherwise. The process also gives an opportunity to address any potential issues during employment.

Remember:

Conduct a fair process even if the employee has less than 2 years’ service, this shows that you have considered all avenues fairly, even though it is not legally necessary.

For disciplinary:

  • Investigate fully, gather evidence, witness statements or CCTV
  • Suspend if necessary and for a reasonable amount of time, the employee should receive full pay during this time
  • Take informal action wherever possible
  • Follow this by formal action if the issue persists, by holding a disciplinary meeting and have note taker to review the outcome
  • From the outcome of the disciplinary meeting, draft a first or final written warning or dismissal
  • Deal with any appeal or grievance promptly and ensure a different person is conducting this stage to the investigation of disciplinary meeting to ensure fairness

For grievance:

An employer should always handle grievances immediately; although this can be done informally. A more formal follow up meeting can be scheduled with the employee where they can have someone accompany them if they wish. Finally, decide on appropriate and fair action and allow the employee to appeal if they are not satisfied.

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Rachel Thompson
Rachel heads up our employment law division at Jelf. Rachel has a wealth of experience within employment law and provides commercially focused employment law solutions to clients of various sizes and industries. Rachel has her Masters Degree in Law and has completed her post graduate Diploma in Legal Practice.