Damages for “injury to feelings” in discrimination cases may be about to increase

05Sep2017

In Hong Kong certain types of discrimination are unlawful including:-

  • Sex, pregnancy and marital status discrimination
  • Race discrimination
  • Disability discrimination
  • Family status discrimination

In certain situations harassment, vilification and victimization linked to the above are also unlawful.

One of the express statutory entitlements to compensation includes statutory damages for “injury to feelings” (for example under s.76(6) of the Sex Discrimination Ordinance which states:

6) For the avoidance of doubt, it is hereby declared that damages in respect of an unlawful act of discrimination or sexual harassment may include compensation for injury to feelings whether or not they include compensation under any other head.

The amount of monetary awards for injury to feeling in Hong Kong broadly follows the law in England and Wales and applies the “Vento bands” named after the original case of Vento v Chief Constable of West Yorkshire Police (No 2) (2002).  This states as follows:-

Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.

    1. i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

      ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.
       

      iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

    2. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. 
    3. The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled. 
    4. Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case.

In subsequent cases such as Da’ Bell v. NSPCC  the relevant bands have been increased and in general the Vento Bands and their increases have been broadly adopted and followed in Hong Kong for example 李佩霞 v. 黄苏记运输有限公司 (DCEO 4/2013).

In the UK, a recent consultation programme has led to the Employment Tribunal issuing guidance, increasing the Vento bands with effect from 11 September 2017 to the following:-

  1. Lower Band (less serious cases) £800 – £8,400 (approximately HK$8,000 – HK$84,000);
  2. Middle Band £8,400 – £25,200 (approximately HK$84,000 – HK$252,000);
  3. Upper Band (the most serious cases) £25,200 – £42,000 (approximately HK$252,000 – HK$420,000);
  4. Exceptional cases – over £42,000 (approximately over HK$420,000)

Whilst these have not yet been followed or applied in Hong Kong, history suggests that these increases are likely to be taken into account in future awards in Hong Kong and assist in guiding parties in Hong Kong as to the potential quantum of awards for “injury to feelings” in cases of unlawful discrimination and harassment.

Russell Bennett

For more information on Vento bands and its implications for you or your business, please contact:

Russell Bennett
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.