The effect of discrimination must be taken into account when awarding compensation
9th September, 2019
In Komeng v Creative Support Limited, the Employment Appeal Tribunal considered whether the effect of unlawful racial discrimination on the Claimant was the key consideration when calculating an injury to feelings award, not the gravity of the Respondent's actions.
Mr Komeng, who describes himself as a black African, started his role as a Waking Night Care Worker at Creative Support Limited (CSL) in 2013. As part of his role, he would provide services to vulnerable people with mental and physical disabilities.
In 2015, Mr Komeng started to work weekend shifts on a temporary basis to assist CSL until they recruited new members of staff. New care workers were recruited; however, Mr Komeng continued to work weekend shifts with no support. When Mr Komeng submitted a flexible working request, in line with the work patterns of his colleagues, he was told that he could not change his shifts, as other employees would not agree to change their working patterns.
During the course of his employment, Mr Komeng had voiced a desire to obtain better qualifications and be enrolled on a QCF Level 3 Course; these requests were not actioned by CSL. His colleagues who joined at a later date, and were of a different race, were enrolled on the course when they reached their mid-probation review, as there was funding available. When Mr Komeng requested to be enrolled in the course again, he was told that the qualification was limited to senior workers, leaving Mr Komeng unable to apply.
Mr Komeng raised a formal grievance with CSL, in which he complained about the above issues; this grievance was dismissed on both counts. The outcome was appealed, but was unsuccessful, as CSL held that a compromise had been suggested in relation to Mr Komeng’s working hours, whereby he worked one night a week at a different project, and that he was already adequately qualified for his role.
Mr Komeng brought an Employment Tribunal claim on the basis of direct race discrimination.
The Employment Tribunal (ET) found that the failure to progress Mr Komeng, enrol him on the QCF Level 3 Course and allow him more flexible working hours amounted to direct race discrimination.
The ET assessed the compensation to be awarded to Mr Komeng for injury to feelings and granted an award near the top of the lower Vento band, amounting to £8,400; no claim for interest was submitted.
Employment Appeal Tribunal
Mr Komeng appealed on the grounds that there was a failure to award interest on the compensation, the award should have fallen within the middle Vento band and there was a failure to provide a 10% uplift in accordance with case law.
The Employment Appeal Tribunal (EAT) allowed the appeal in part and held that the ET had failed to calculate interest on the compensation award granted to Mr Komeng. The EAT substituted £8,400 with the correct award of compensation amounting to £12,757, incorporating the interest and uplift due.
However, the EAT found that the Tribunal had not erred when finding that the injury to feelings award fell within the lower Vento band.
The ET had carried out an assessment of the effect that CSL’s actions had on Mr Komeng. The ET had followed the correct approach, by focusing on “the actual injury suffered by the Claimant and not the gravity of the acts of the Respondent”.
Finally, the EAT made it clear that the Vento bands were not so prescriptive to mean that only cases with one-off incidents of discrimination fell within the lowest band.
This case is a reminder of how the Employment Tribunal should approach compensation in cases of direct race discrimination. The impact of discrimination is an individual experience and will affect everyone differently; therefore, this factor should be at the forefront when assessing the amount of compensation to be awarded for injury to feelings, not the acts of the Respondent.
Further, this case illustrates the importance of an award of interest. Interest is regarded as an ‘essential component of compensation for the purposes of restoring real equality of treatment’. Employment Tribunals should therefore consider an award of interest even if the parties have not raised the issue within their claim.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.