In terms of assessing compensation for injury to feelings, courts have long followed the guidance provided by the “Vento bands”, which was updated in 2017. In Durrant v Chief Constable of Avon & Somerset Constabulary, the Court of Appeal held that the revised amounts can be used in cases prior to the update in circumstances where it is justified to do so.
After being arrested in 2009, Ms Durrant, who is of mixed race, brought claims of race discrimination against Avon and Somerset police. She complained initially to its Professional Standards Department, but following an investigation this was dismissed. After she complained to the Independent Police Complaints Commission, she was offered compensation of £200 for one specific incident. After another investigation, she complained to the High Court.
After a delay partly caused by the failure of the police to comply with two court orders, the High Court judge agreed that although the police had grounds for arresting her, they initially focused on her to the exclusion of two other (white) individuals. They also handcuffed her hands behind her back before she was placed in the police van which resulted in her being thrown around in the back of the van. The judge awarded compensation for injury to feelings of £4,950.
On appeal, the Court of Appeal added another finding of unlawful racially discriminatory conduct to the two identified by the High Court judge. This was to do with the delay she was made to endure before being allowed to go to the toilet at the police station. This was so extensive that she ended up having to urinate on the floor of the holding cell in front of a group of male officers. Ms Durrant appealed against the compensation awarded by the High Court judge on the basis of the additional finding of race discrimination.
In 2003, the Court of Appeal laid down guidance for compensation in Vento v Chief Constable of West Yorkshire Police (No. 2) which provided for three bands, determined by the seriousness of the case. The lower band of £500 to £5000 applied in less serious cases; the middle band of £5,000 to £15,000 applied in serious cases that did not merit an award in the upper band; the upper band of £15,000 to £25,000 applied in the most serious cases (with the most exceptional cases capable of exceeding £25,000).
Following a consultation in 2017, guidance was issued stating that the Vento bands were to be increased to £800 to £8,400, £8,400 to £25,200 and £25,200 to £42,000 for claims presented on or after 11 September 2017. For claims presented before that date, a formula connected to the Retail Prices Index could be used unless another approach was agreed. Although Ms Durrant’s claim was submitted long before September 2017, she argued that the revised formula should be applied in her case.
Decision of Court of Appeal
Holding that all three incidents needed to be considered together, the Court of Appeal agreed that they should apply the 2017 figures as this was the best way to make allowance for the effect of interest and an appropriate element of uplift in relation to the “long and hard road” which Ms Durrant had to follow to achieve vindication for her claim in respect of all three claims.
Bearing in mind that assessing compensation is not a “refined mathematical exercise”, the Court held the case was serious enough (largely because of the “urination incident”) to fall into the lower end of the middle Vento band, The amount of compensation which was just and equitable in all the circumstances of this case was therefore £14,000.
The recent revision to the Vento bands was done on the basis that it was just and equitable to do so. It was therefore a curiosity that the Presidential Guidance only applied it from an arbitrary start-date. After all, if it is fair and right to apply the changes to a case issued on that date, how is it any different to apply it to a case issued the day before? The Court of Appeal’s decision is therefore a welcome reassurance for lawyers in the employment tribunals that this argument now has the blessing of a court which binds the tribunals, and we are pleased to note that tribunals appear to be receptive to it.