Sadia Shakil v Samsons Limited

An award for injury to feelings in a discrimination claim must compensate the claimant’s actual injury. A tribunal should identify the discriminatory conduct, consider the claimant’s evidence, make findings about its emotional impact, apply the current Vento bands, and explain both the selected band and the figure within it.

Pregnancy-related concern for an unborn child may aggravate the injury. A respondent’s limited means cannot reduce a compensatory award. Improper conduct in defending the claim may increase it.

The claimant was employed as an accountant/bookkeeper by the respondent property development company. The Employment Tribunal upheld her pregnancy-discrimination complaint. It found that her hours were reduced because of pregnancy-related illness and that her later dismissal was because of pregnancy, rejecting the asserted redundancy, capability and conduct reasons.

The Tribunal awarded £5,000 for injury to feelings. It made no findings about the claimant’s pleaded evidence of emotional injury, did not identify the applicable Vento band or Presidential Guidance, and gave limited reasons. The claimant appealed the award.

1. Appeal allowed. The Tribunal’s assessment of injury to feelings was wholly inadequate and could not stand.

2. The award had to compensate the claimant’s actual injury from the discriminatory treatment. Applying Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, a tribunal should identify the treatment, consider the claimant’s evidence, make findings on the resulting injury, identify the current Presidential Guidance band, explain why that band applies, and explain the figure selected within it.

3. The Tribunal did not undertake those essential steps. Its award fell within the lower band without identifying that band or the applicable fourth addendum. The discrimination comprised a reduction in hours, a sham redundancy process and false allegations. It was not plausibly one-off treatment causing only limited injury. On the evidence, a middle-band award was difficult to avoid unless the claimant’s account was properly rejected.

4. The Tribunal also erred by treating pregnancy-related worries as an extraneous source of upset. The claimant’s pregnancy, including concern for her unborn child, formed part of her individual circumstances and could exacerbate the injury caused by discrimination. The respondent’s size or resources were irrelevant to a compensatory assessment. Its litigation conduct, including false assertions and an alleged threat of publicity, required consideration.

5. The EAT declined to substitute an award because the Tribunal had made no significant findings on injury. The assessment was remitted to a differently constituted Employment Tribunal, applying Sinclair Roche & Temperley v Heard [2004] IRLR 763. Case management, including any application to amend for aggravated damages, was left to that Tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the injury-to-feelings assessment to a different Employment Tribunal: [2024] EAT 192.
• Employment Tribunal: Upheld the pregnancy-discrimination complaint and awarded £5,000 for injury to feelings. Its judgment was sent to the parties on 20 June 2021.