Off-the-cuff remarks = £30k for injury to feelings?
A manager has made an off-the-cuff remark about an employee’s race. It’s a meaningless comment, but there’s hidden danger: it could cost you as much as £30,000 in compensation for “injury to feelings”. What’s to know?
The new legislation
Under the Equality Act 2010, “race” is one of eight “protected characteristics” (see The next step). These are grounds upon which you must not discriminate against employees. They are exactly the same as the ones which could be used to issue a discrimination claim prior to the Act coming into force, i.e. it has consolidated existing legislation, rather than extending it.
The power of the tribunal
Those employees who successfully claim discrimination can be awarded uncapped compensation by the tribunal (although the average pay-out for race discrimination currently stands at £15,000). However, they can also seek further damages for “injury to feelings and/or health” if they can show they suffered this type of harm as a direct result of the discrimination.
The level of damages
There are three fixed levels of compensation for these claims: (1) £6,000; (2) £18,000; and (3) £30,000. The actual award will depend on the scale of the injury. For example, serious depression would probably fall into the upper bracket, whereas a minor upset would achieve a lesser sum.
The big danger
But what’s the hidden danger with this type of claim? Well, they’re easy to prove. As far as the tribunal is concerned, you don’t need to know that an employee would suffer an injury following discrimination; it doesn’t even have to be a possibility. All that matters is that they can demonstrate it caused some harm, e.g. an illness.
Comments about race
That one fact, of course, makes this a very attractive proposition for disgruntled employees. Over the past few years many have seized upon jokes, banter and passing comments to issue a claim. One such case was Taylor v XLN Ltd 2009. Taylor (T), who is black, worked for XLN as a team leader. During his probationary period he raised a grievance. It alleged that a manager had made a racially offensive comment about him.
Claim. Shortly afterwards, T was dismissed for “poor performance”. He then used the grievance to issue a claim for discrimination. He threw in injury to feelings on the basis that he had suffered “anxiety and depression” as a result of it.
Unconnected to the decision
XLN argued that the two matters were unconnected, i.e. T couldn’t prove his race had motivated its decision to dismiss him. The Employment Appeal Tribunal took a different view. It said all T had to show was that he had suffered an injury to feelings and/or health as a consequence of its actions; nothing more.
Risk. These are dangerous claims for employers as employees don’t have to do much to succeed. It’s also likely that the tribunal will be dealing with more of them now the Act is in force.
Tip. To stay safe, don’t tolerate any race-related comments in your workplace. Even if they’re not meant to be offensive, they could be taken the wrong way and land you with a claim.
This type of claim is incredibly easy to prove; in order to succeed, all the employee has to demonstrate to the tribunal is that their feelings, or health, suffered as a result of the manager’s actions. Eliminate the risk by prohibiting race-related comments in your workplace. This prevents “misunderstandings”.
Tips & Advice Personnel: 20.01.11
