Vento bands – a cautionary tale for judges and practitioners

There has been a flurry of cases in recent months where Employment Tribunal (ET) decisions and subsequent awards for injury to feelings have been subject to criticism by the Employment Appeal Tribunal (EAT), with one stating that the case should be remitted to a completely different ET as the decision in relation to injury to feelings was “totally flawed”. If judges are criticised, what chance do practitioners have?

Not just guestimates

The recent cases are a stark reminder to employment law practitioners and employment judges about the extent of the analysis that is required in order to adequately assess injury to feelings awards in discrimination claims. It is often usual practice in discrimination claims for the level of injury to feelings awards to be ‘estimated’ without adequate consideration and with the potential to unfairly prejudice a party in the proceedings, be it the claimant or the respondent. Recent case law highlights the need to properly understand the impact that the discrimination has had on the claimant, supported by evidence, before concluding the level of award in line with the often hard to predict ‘Vento’ bands.

Shakil v Samsons Ltd [2024] EAT 

The first of the EAT’s scathing judgements was the 2024 case of Shakil v Samsons Ltd in which actions taken by an employer in relation to a pregnant employee were held to be discriminatory and resulted in a substantial award being made by the ET. 

In summary, Ms Shakil (the claimant) had worked for Samsons Ltd (the respondent) for six months as an accountant/bookkeeper when she called in sick due to suffering from ‘morning sickness’. This was the point at which the respondent became aware of the pregnancy. In apparent retaliation, her working hours were reduced without any consultation or notice, to only two days a week. The respondent sought to criticise her capability and conduct as apparent justification for the reduction in working hours. 

As if the actions of the respondent were not already questionable enough, one month before the claimant’s maternity leave was about to start, the respondent decided to play with fire and placed her at risk of redundancy citing a ‘downturn in work’. The respondent went on to dismiss the claimant one day before her maternity leave was due to commence.

Not much of a surprise, the claimant’s claim for pregnancy discrimination was successful. The ET concluded that the respondent’s actions were because of the claimant’s pregnancy-related illness and that the redundancy was a sham motivated by the pregnancy. 

The ET made an injury to feelings award of £5,000. Why? Well, we simply don’t know, because the judgment failed to reference the Vento bands in the justification of the award. The judgment was therefore appealed. Not only did the EAT criticise the ET for its failings, it went one step further by providing useful guidance on the test to be applied when determining injury to feelings. Determination of an injury to feelings award should not be a ‘guestimate’ or an arbitrary figure. 

The ET should have:

1. identified the evidence given by the claimant about the injury to feeling she suffered as a result of the discrimination (she had set out detailed evidence in a witness statement);
2. made findings of fact about the injury to feelings suffered;
3. referred to the Vento bands;
4. referred to any statutory provision or authority relevant to assessing injury to feelings;
5. identified the relevant bands for this claim in presidential guidance;
6. stated which band the injury to feelings fell within; and
7. explained why the award was set as it was within the band.

More importantly, the EAT was clear that “This [was] not a case in which there was one-off treatment that would be likely to result only in limited injury to feelings”.

Eddie Stobart Ltd v Graham [2025] EAT 

Hot off the press is the EAT judgment in Eddie Stobart v Graham, which held that an ET’s award for injury to feelings was ‘manifestly excessive’ for an act of pregnancy/maternity discrimination.

Whilst the facts of this case are unique, it once again highlights the importance of considering the factual background, specifically the discriminatory acts alleged that have caused the hurt feelings.

Ms Graham (the claimant) claimed that Eddie Stobart Ltd (the respondent) had failed to take adequate steps to deal with her grievance. The claimant had emailed the details of a grievance to her employer twice but her emails had (unknown to the respondent) been blocked by a firewall.

The claimant had presented little evidence on the injury aspect itself so it was left to the ET to look at the discrimination and the manner of it to test whether it could properly support inferences of secondary fact about that injury. The ET flagged that the respondent missed opportunities to ask the claimant about the content of her grievance and explore why it had not been received. In the absence of any evidence that the claimant’s feelings were ‘hurt’, the EAT substituted an award of £2,000. The EAT said it could have considered a lower sum, but it was prepared to infer some additional injury arising from the fact that the claimant was chasing up her grievance at a time when she should have been enjoying her maternity leave.

A lack of evidence

It is often the case that evidence of the injury to feelings is limited, other than witness evidence to say that the claimant was ‘shocked’ and ‘upset’. It therefore follows that there can be no award if there is no evidence of injury at all. However, the manner of discrimination can provide a basis for inferring the level of upset caused when evidence is otherwise sparse.

Parties can greatly assist the tribunal by providing more direct evidence, the burden being on the claimant to show that his or her feelings have been injured and to what extent. In this regard, the EAT has previously considered that the following may be helpful to consider:

• the claimant’s description of the injury;
• the duration of the consequences;
• the effect on past, current and future work;
• the effect on their personal life or quality of life. 

The Vento guidelines

The Vento guidelines are used to assess the amount of compensation in cases of discrimination or harassment based on factors such as injury to feelings. They categorise compensation for injury to feelings into three bands (as at April 2024):

1. Lower band: For less serious cases, where the act of discrimination or harassment is found to have a limited impact on the claimant. The compensation ranges from £1,200 to £11,700.
2. Middle band: For cases that are more serious, but not as egregious, with compensation ranging from £11,700 to £35,200.
3. Upper band: For the most serious cases of discrimination, harassment or victimisation, where the impact on the claimant is significant. The compensation in these cases can range from £35,200 to £58,700 or more.

An award of injury to feelings compensates for subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, and depression (not an exhaustive list by any means).

The purpose of the award is to compensate a claimant rather than punish a respondent or deter them from particular courses of conduct.

Specifically in cases of pregnancy discrimination, the case of Commissioner of Police of the Metropolis v Shaw [2011] EAT was clear, that concern for an unborn child can increase the level of injury to feelings suffered as a result of the discriminatory conduct.

In conclusion, it is imperative to assess the actual impact upon the claimant, because unlawful discriminatory behaviour may affect different individuals differently, although overt discrimination is likely to increase the level of injury to feelings, and the conduct of the respondent, including defending the claim in an inappropriate manner, which can also be a reason for an increase to the level of injury to feelings. Caution should be exercised in the assessment of compensation for injury to feelings, with careful analysis and supporting evidence being necessary to avoid the pitfalls of an appealed judgment.