Chief Constable of West Yorkshire v Vento (No.2) [2002] IRLR 177

Vento (no 2) confirms the approach to be adopted by tribunals in making awards of compensation, including awards for injury to feelings, and in making recommendations.

Ms Vento joined the West Yorkshire police as a probationary constable in December 1995. She was not confirmed in post at the end of her probationary period in December 1997, and she was therefore dismissed. Following her marriage breakdown Ms Vento alleged that that there was a change in attitude towards her from her superiors. She alleged that they began to show an unwarranted interest in her private life, that they bullied her and subjected her to sexual harassment, and that they placed her under undue scrutiny. Ms Vento's claim of sex discrimination was upheld by the Employment Tribunal who decided that in similar circumstances a male probationer would have been offered a permanent position.

The tribunal awarded compensation of £257,844. This consisted of the following:

1 £ 165,829 for future loss of earnings. This was calculated on the basis that there was a 75% chance that Ms Vento would have completed a full police career had she not been dismissed, serving for 21 years. The tribunal accepted that the statistical evidence showed that only 9% of women police officers who left service in the period 1989 to 1999 had served for over 18 years. However, it noted that family-friendly policies were being introduced, that social conditions were changing, and that Mrs Vento had shown a strong desire to provide materially for her children.

2 £ 65,000 for injury to feelings including £15,000 by way of aggravated damages. The award of £50,000 for injury to feelings reflected the tribunal's finding that Mrs Vento had been subjected to bullying from her superiors following the breakdown of her marriage, that this had contributed to clinical depression, and that she had then had the shock and disappointment of being dismissed and had gone through a tribunal hearing at which her private life had been subjected to minute scrutiny. The additional award of £15,000 for aggravated damages reflected the tribunal's finding that the Chief Constable and his officers 'have throughout acted in a high-handed manner' and that their attitude was one of 'institutional denial'.

3 £ 9,000 for personal injury,
4 £18,015 for interest.
5 The tribunal also made recommendations that Ms Vento should receive apologies from various individual officers. It further recommended that the Deputy Chief Constable should interview named police officers and discuss with them relevant parts of the decisions of the employment tribunal and the EAT on liability.

The Chief Constable appealed against the remedies awarded.

On appeal the EAT set aside the award for loss of earnings and remitted to a differently constituted tribunal for reconsideration. In terms of the future loss of earnings the EAT held that there was no proper basis upon which the tribunal could have justified departing so far from the statistical evidence that only 9% of women who had left the police force had served for more than 18 years.

The EAT held that the award of £50,000 for injury to feelings plus £15,000 aggravated damages was too high and well outside the range which any tribunal properly directing itself to the cited authorities would have made. In Armitage v Johnson [1997] IRLR 162 EAT, the applicant received £21,000 and £7,500 for aggravated damages. In that case the tribunal noted that the applicant had been subjected to an 18-month campaign of appalling treatment on racial grounds. In Ms Vento's case the EAT said a proper award in line with the authorities would be £25,000 for injury to feelings and £5,000 for aggravated damages.

In relation to the recommendations it was argued on appeal that the tribunal's jurisdiction is limited to making recommendations which obviate or reduce the adverse effect of the act of discrimination on the complainant and that they cannot make recommendations which are merely generally ameliorative. The EAT held that the recommendation made by the tribunal was appropriate. Section 65(1)(c) of the RRA (1976) gives the tribunal an extremely wide discretion and it is good practice for any employer, faced with findings such as those made in Ms Vento's case, to consider its behaviour and discuss the findings of the tribunal with those concerned. However, the EAT held that the tribunal had erred in recommending that each of the officers should be invited to apologise in writing to the applicant.

The case demonstrates the importance of the recommendation possibilities as part of the remedy for unlawful discrimination, but also the limitations. It also underlines the need for applicants and their advisors to be be able to back up a claim for financial compensation with evidence to support the claim - both of likely future losses and the extent of the injury to feelings and the damage done.