Month: March 2020

When dealing with a discrimination claim, you will need to know about the Vento guidelines which have been recently been increased.

Injury to feelings

In most employment claims, such as unfair dismissal and breach of contract, the majority of the compensation is based on financial losses. However, with discrimination cases employees can be awarded compensation for financial losses as well as an award for ‘injury to feelings’ under the Equality Act 2010.

Compensation for injury to feelings is based on a reflection of the injury to feelings that the employee has suffered. This is not intended to be a form of punishment for the employer. The size of the employer’s business is not relevant because the award is only designed to reflect the effect on the victim/employee. The following factors that should be considered in each case are things like:

• does the employee suffer from a medical condition making them vulnerable?

• has the employee suffered stress, anxiety and/or damage to their personal relationships?

• what degree of hurt, distress or upset has  been caused?

• what was the position of the person who was found to be discriminating (e.g. whether they were more senior than the victim)?

• how did the employer deal with any complaint that was made by the employee?

• what was the seriousness of the treatment?

What are the Vento guidelines?

The Vento guidelines are named after the landmark case in 2003 of Vento v Chief Constable of West Yorkshire Police where the Court of Appeal set out clear guidelines for courts and Tribunals to apply when they are assessing injury to feelings awards. The Vento case decided that there are 3 ‘bands’ for compensation for injury to feelings:

• the lowest band –for the least serious cases, such as one-off acts of discrimination;

• the middle band – for serious cases, but not appropriate for the highest band; and

• the highest band – these are for the most serious cases, such as where there has been a campaign of discriminatory behaviour which has a profound effect on the victim/employee

However, the Vento guidelines don’t really create a limit, therefore there is potential for injury to feelings awards to exceed the highest band, but this would be for exceptionally rare cases.

What are the current rates?

The new bands, for claims issued on or after 6 April 2020, are:

• lower band: £900 to £9k

• middle band: £9k to £27k

• upper band: £27k to £45k (with the possibility of the most serious cases exceeding £45k)

The Guidance can be downloaded here.

When the Vento case was first decided back in 2003, the highest band was £15,000 – £25,000. Since 2017 the Presidents of the Employment Tribunals have issued annual increases to the Vento awards, to allow for inflation.

If you are an employer looking for guidance on dealing with discrimination claims or how to value the injury to feelings award being claimed, contact our team today for a free initial consultation. We’re here to help. 

Please contact spatel@lawson-west.co.uk Tel: 0116 212 1056, alternatively complete our online web enquiry form here and we will get in touch as soon as possible.

At Budget 2020 last week the Chancellor confirmed that the extension of IR35 reforms to the private sector would go ahead as planned but delayed for 12 months. The latest announcement means the Finance Bill legislation will be delayed by a year and amended to show the new start date of 6 April 2021, and fresh legislation will be brought by then.

These reforms, which were introduced in the public sector in 2017, pass the responsibility for determining a contractor’s status from the individual to the organisation which employs their services. Their extension to the private sector has proved to be controversial, with claims that the rules are too complex and that HMRC’s online tool check employment status for tax (CEST) used to determine whether or not they apply to contractors is not robust enough to provide a certain or accurate outcome and is therefore flawed.

Steve Barclay, Chief Secretary to the Treasury said: 

‘This is a deferral in response to the ongoing spread of coronavirus to help businesses and individuals affected. 

‘This is a deferral, not a cancellation. The government remains committed to re-introducing this policy reforms to ensure that people working like employees but through their own limited company pay broadly the same tax as those employed directly.’

The Lawson West view: 

‘The delay is welcome news indeed, particularly to the self-employed during the COVID-19 crisis for it will reduce the strain and income loss for self-employed businesses who are already concerned about the financial implications of the current virus situation.’ 

If you would like to discuss your employment status as a contractor, or you are a business reviewing the status of sub-contractors and would like more help of advice about ir IR35 changes, please get in touch. 

Vaishali Thakerar, Associate Director and Head of Employment Team, Leicester

vthakerar@lawson-west.co.u. Tel:  0116 2121059 

A recent case, brought to an Employment Tribunal, has highlighted the need to check policies against legislation to avoid facing claims of discrimination. Vaishali Thakerar explores this most recent case.

In Sethi V Elements Personnel Services Ltd an Employment Tribunal held that a worker had been indirectly discriminated against by a temporary work agency due to their ‘no beards’ policy.

The agency sought temporary work for clients, predominantly five-star hotels, and implemented the ‘no beards’ policy in response to their clients’ demands. It is important to note the policy was concerned with appearance rather than hygiene.

Whilst the Tribunal accepted it was a legitimate aim to seek to comply with clients’ requirements, the ‘blanket’ approach adopted by the agency could not be justified.

In this particular case, a practising Sikh, looking for work, was removed from the agency’s books once he advised he would not be able to shave his beard for religious reasons.  When Mr Sethi advised the agency of this, he was told that five-star service required all staff to be clean-shaven, and that facial hair was not allowed for health and safety reasons, when in fact the policy was concerned with appearance.

Mr Sethi brought a claim against the agency, alleging the ‘no beards’ policy amounted to indirect discrimination related to his religion, contrary to the Equality Act 2010.

The Tribunal held that the policy placed Sikhs generally, and Mr Sethi specifically, at a particular disadvantage because of the Sikh practice of Kesh (the requirement that body hair not be cut).

Where the agency went wrong was the lack of evidence to support their clients’ requirements. There was no evidence that any client had been asked whether they would make an exception for a Sikh worker and in fact some clients didn’t have an issue with beards at all.

The legitimate aim for the agency to meet client requirements could have been met by accepting Sikhs, such as Mr Sethi, onto their books and then dealing with clients on a case by case basis.  The conclusion was the agency could not rely on a blanket, untested client requirement that deprived individuals of work.

When implementing any kind of policy, it is important to consider the wider impact it may have. A one-size fits all approach will not work and there will always be exceptions to take into consideration. Seeking legal advice in relation to policy writing is advisable to ensure your business is correctly protected as well as your employees.

Should you require further information about anything covered in this article, get in touch. Vaishali Thakerar on 0116 212 1059 or email vthakerar@lawson-west.co.uk.