Komeng v. Creative Support Ltd

An Employment Tribunal must consider interest on a discrimination award whether or not a party applies for it. It must do its best to calculate interest from the findings and available evidence. A lack of exact dates does not justify refusing interest, particularly where the employer’s records caused the difficulty. The prescribed periods may be adjusted only where the Regulations permit this to avoid serious injustice.

An injury-to-feelings award is assessed by its effect on the individual claimant, rather than the gravity of the respondent’s conduct. The lower Vento band is not confined to isolated or one-off discrimination. Appellate intervention is exceptional where the Tribunal correctly directs itself and its banding assessment is open to it on the evidence.

The claimant, a black African care worker, succeeded before the Birmingham Employment Tribunal in complaints of direct race discrimination. The Tribunal found that the respondent had failed to support his access to a Level 3 course and had required him to work every weekend. It awarded £8,400 for injury to feelings, near the top of the lower Vento band, but awarded no interest.

On reconsideration, the Tribunal maintained both its refusal of interest and its assessment of injury to feelings. The claimant appealed. The central issues were whether the Tribunal had erred by refusing interest, whether the injury-to-feelings award should have been in the middle band, and whether a 10% uplift under Simmons v Castle [2012] EWCA Civ 1039 should be included.

1. Appeal allowed in part. The Employment Appeal Tribunal quashed the refusal to award interest, upheld the £8,400 injury-to-feelings award, and substituted a total award of £12,757 inclusive of interest and uplift.

2. Under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, an Employment Tribunal must consider interest without an application by either party. Its original reliance on the absence of an application was therefore erroneous.

3. The reconsideration reasoning was also erroneous. The Tribunal had accepted that the claimant had repeatedly raised the course issue and had identified an earliest recorded supervision date. It was required to do the best it could with that material. If an exact date could not be found, it could select a reasonable date after the earliest review at which the request was made. The finding that the claimant requested relief from every-weekend working on 11 February 2014 also supplied material for the calculation. Regulation 6(3) provided flexibility where the prescribed calculation would cause serious injustice.

4. There was no error of law in placing the injury within the lower Vento band. The Tribunal had directed itself correctly to the actual injury suffered, not the gravity of the discriminatory acts. It was entitled to assess the claimant’s evidence as showing resilience despite significant upset and distress. The lower band is not reserved for one-off incidents, and the award at its upper end was within the Tribunal’s evaluative judgment.

5. The parties agreed the figures of £3,517 interest and £840 for the required Simmons v Castle uplift. Exercising its substitution power under section 35(1)(a) of the Employment Tribunals Act 1996, the EAT ordered payment of £12,757.

• Employment Appeal Tribunal: appeal allowed in part. The refusal of interest was quashed; the injury-to-feelings award was upheld; and the total compensation was substituted at £12,757.
• Employment Tribunal, Birmingham: on 6 and 9 February 2018, with judgment sent on 10 April 2018, the Tribunal upheld direct race discrimination complaints and awarded £8,400 for injury to feelings. On reconsideration, heard on 21 September 2018 and sent on 12 October 2018, it maintained that award and its refusal of interest.