Over £2.5 million in damages – is that normal?

Earlier this month, David Barrow’s successful claim for disability discrimination and unfair dismissal against his former employer Kellogg Brown & Root (UK) Limited (KBR) hit the headlines when he was awarded damages in the sum of £2,567,831.

There is little doubt from the liability judgment that Mr Barrow was extremely badly treated by his employer of 36 successful and unblemished years following a change in his behaviour due to medication that he was taking for a skin condition, which was later diagnosed as cancer. Following a purported summary dismissal, Mr Barrow was subjected to a ‘sham’ process in which KBR sought to justify his dismissal on the grounds of a breakdown in trust and confidence. The tribunal found in his favour in terms of unfair dismissal, disability-related harassment and discrimination arising in consequence of disability.

At the time of writing, the remedy decision has yet to be published but reports from Mr Barrow’s solicitor and barrister help us to understand the very large award of damages. At the time of his dismissal, Mr Barrow was 60. The tribunal accepted that Mr Barrow would not work again and therefore career-long losses were sustained. In addition to an award for injury to feelings, the tribunal awarded Mr Barrow £25,000 in respect of personal injury. In recognition of how badly his employer had acted, the tribunal made an unusual award of aggravated damages (in the sum of £7,500).

Mr Barrow’s compensation was the second-largest-ever disability discrimination award, but what is an average award for a discrimination claim?

Compensation in discrimination claims

Compensation in discrimination claims is uncapped and can result in very large awards of damages, as in Mr Barrow’s case. However, they are not the norm.

The latest figures that we have of tribunal awards generally are from 2019–2020. In that year, another standout award for disability discrimination was made (£265,719); however, the average award for disability discrimination was £27,043, while the median was only £13,000.

During that period there was also a very high award in an age discrimination claim (£243,636), but again it’s clear that this was uncommon as the average award was £38,794, while the median was only £11,791.

In the same period, the highest award for race discrimination was only just over £30,000, with the average being under £10,000 and the median being just over £8,000.

In that year, there were no successful religious discrimination claims.

Vento guidelines

The very high compensation awards are invariably based on extended periods of loss of earning often due to protracted ill-health. The other heads of potential compensation for discrimination, including injury to feelings, do not normally result in headline-grabbing figures. The Vento guidelines (as they are called after the 2003 case of Vento v Chief Constable of West Yorkshire Police), are now increased on an annual basis, most recently on 6 April 2021. The Vento guidelines divide compensation for injury to feelings into 3 potential bands: lower, middle and upper; with the current awards available:

Lower band case – between £900 and £9,100

Middle band case – between £9,100 and £27,400

Upper band case – between £27,400 and £45,600.

Technically, the tribunal has jurisdiction to make an award for injury to feelings of more than £45,600, although this is rarely exercised.

Employees and former employees who feel that they have been discriminated against are therefore very well advised to concentrate primarily on their actual losses when setting their expectations as to what they might recover from the tribunal, even if their claim is successful.

Dealing with discrimination claims

Whilst Mr Barrow’s discrimination compensation is well above the average award, it serves as an important reminder to employers that an individual who has suffered discrimination during employment can claim compensation for a number of factors, including financial loss, injury to feelings, personal injury (whether that be a physical or more commonly, a psychiatric injury), and in cases of particularly bad behaviour, ‘aggravated damages’.

Employers must understand their key obligations to employees to deter and prevent discrimination in the workplace including:

1. promoting a culture which does not tolerate, condone or encourage any form of discrimination in any aspect of the employment relationship;
2. ensuring that robust procedures are in place to address any complaints which arise;
3. providing training on induction and refresher training on a regular basis;
4. making sure that such training is actually effective and not merely a tick-box exercise;
5. taking appropriate disciplinary action if an employee discriminates against another or a client; and
6. learning from any incidents of discrimination and assessing how to prevent recurrences.

For more information on discrimination claims and the related issues, please contact Rachel Tozer.