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I Gotta Injury to Feeling

10th August 2017

By Andrew Knorpel, Partner and Head of Employment

Whether or not tonight’s going to be a good night, it will soon be a better day for those claimants who bring successful claims for discrimination or detriment. This is because awards for injury to feelings are increasing.

Following a suggestion by the Court of Appeal in the case of De Souza v Vinci Construction (UK) Ltd on 4 July 2017, the Presidents of the Employment Tribunals published a consultation on 20 July 2017 to uprate the Vento bands for injury to feelings to take into account both inflation and the additional 10% uplift required by the Court of Appeal. They propose that the uprated bands would apply to any claim presented on or after the date of new Presidential Guidance, then be further uprated automatically every 12 months thereafter in line with the Retail Prices Index (rounded down or up to the nearest £1,000).

This would have the effect of the new bands being (if they had been published on 18 July 2017) £1,000 to £8,000 for the lower band, £8,000 to £25,000 for the middle band, and £25,000 to £42,000 for the top band. The consultation exercise closes on 25 August 2017.

In the recent case of International Petroleum Ltd and others v Osipov and others, the EAT examined whether the individual decision-makers of an employer could be liable for losses flowing from their decision to dismiss an employee where that decision was because the employee had made a protected disclosure.

The employment tribunal had found that Mr Osipov had been automatically unfairly dismissed because the sole or principal reason for his dismissal was that he had made a number of protected disclosures. This meant that the usual cap on unfair dismissal compensation (52 weeks’ gross pay or £80,541 at present) did not apply. However, the tribunal had also found that the two non-executive directors (“NEDs”) who had taken the decision to dismiss Mr Osipov had subjected him to a detriment (dismissed him) on the ground that he had made protected disclosures. Although an employee can’t bring a claim for detriment where the detriment in question amounts to an unfair dismissal, the tribunal allowed the detriment claim to succeed against the NEDs personally in this case because no claim for unfair dismissal had (or could have) been brought against them personally. The tribunal ordered that approximately £1,745,000 compensation be paid by the Company and the two NEDs on a joint and several basis. This was upheld by the EAT despite the fact that this gives rise to significant personal liability for the two NEDs.

In light of this judgment, individuals dismissed in similar circumstances are now always likely to bring not only unfair dismissal claims against the employer, but also detriment claims against the decision-makers (who may just be ordinary members of management) personally. If the detriment claim succeeds, then the claimant might well be given an injury to feelings award payable by the decision-maker personally which couldn’t have been made if only unfair dismissal proceedings had been brought.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2017.

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