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Settling your claim before the hearing

You could, if you wish, settle your claim, rather than proceed to a hearing before the Tribunal and indeed this is the way in which many Tribunal claims are resolved. In order to decide whether or not you should settle your case before hearing, you should have some idea about what you might expect to receive from a Tribunal if your case is successful. This will help you to decide on what would be an appropriate compromise settlement.

Tribunals have the power to:

award you compensation,
declare your legal rights, or
make a recommendation that reduces the effect of the discrimination on you.

The most usual remedy ordered by a tribunal is the payment of compensation. Compensation for discrimination can be composed of 2 elements, described below:

Injury to Feelings
Actual financial loss

1. ‘Injury to Feelings’ compensation is payable for the upset, distress and inconvenience caused to you by the discriminatory act. This evidence of your upset will come from you. Such compensation is assessed by reference to the following bands:

£15,000 - £25,000 - most serious cases, such as where there has been a lengthy campaign of discriminatory harassment;
£5,000 - £15,000 - used for serious cases, which do not merit an award in the highest band;
£500 - £5,000 - appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurence.

These are referred to as the ´Vento´ bands, after the leading English case in which the English Court of Appeal articulated them.

Injury to feeling awards from the Tribunal have since 2002 been based on the ´Vento´ case (or Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 102CA).

The Guidelines had remained unchanged since 2002. However, in the recent case of Da´Bell v NSPCC, the Court of Appeal reviewed and increased the Vento figures to take account of inflation, as follows:

Lower Band:
Less serious or isolated incident of discrimination. The upper limit has been increased from £5,000 to £6,000.

Middle Band:
Serious cases that do not justfy the higher limit. The upper limit has been increased from £15,000 to £18,000.

Higher Band:
The most serious cases of discrimination or lengthy campaign. The upper limit has been increased from £25,000 to £30,000.

Exceptional cases could still attract an award of over £30,000.

This became effective from 1st October 2009 - the date of the Court of Appeal´s decision.

2. Compensation for ´actual financial loss´ is provided in order to restore the Claimant to the position s/he would have been in had they not been discriminated. It is composed of:

losses incurred between the date of the discriminatory act and the date of the hearing, and
a sum for any future loss that might be incurred.

Your loss of earnings under heading (a) is the difference between the net pay you received, or would have received, and the sum you actually received calculated on a weekly basis up to the hearing. You must also deduct from this sum any Job-seekers Allowance, Incapacity Benefit or any Income Support received during this time (but you do not deduct any Disability Living Allowance received).

Your loss of earnings under heading (b) is more difficult to predict. A Tribunal will try to assess how long it will be before you will receive the same wage you received, or would have received, if you had not been discriminated against.

Your duty to mitigate your loss

Even if you have been unlawfully discriminated against you still have a duty to try and limit the extent of your loss. You cannot ‘sit back’ as it were and do nothing simply because you are the one who was badly treated. You have a duty to ‘mitigate your loss’ (i.e. reduce the effect of your loss) by seeking alternative employment. If you do not do this it will affect the amount of compensation that you will be awarded.

Typically, claims are settled when in return for compensation, and/or an apology, for example, the claimant agrees to withdraw his or her claim. Where this happens the employer will require you to sign an agreement to that effect, called a ‘Compromise Agreement’, which is evidence that the claim has been settled and prevents you bringing it again at a later date.

The basis on which you settle a case is entirely up to you. Whether a sum of money is involved or not, whether you seek an apology or a commitment by the Respondent to undertake certain changes in the workplace, are all matters for your consideration. Each settlement is unique and depends upon what the parties are prepared to agree. It might be the case, for example, that the Respondent is content to give you a relatively sizeable sum of money but is strongly opposed to admitting liability or making an apology.

Some help in settling a claim can be gained from reading the Equality Commission’s Annual Review of Decisions and Settlements, which outlines the terms on which cases assisted by the Commission were decided or settled in that particular year.

Be careful when settling a case that you don’t agree to waive any other rights that you might have against that employer – such as claims for industrial injuries, for example – and ensure that you are only settling your discrimination claim.

Negotiations about settling a case are carried out on a ‘without prejudice’ basis. This means that if the negotiations break down then the substance of what is said in negotiations cannot be repeated before the Tribunal.

Further advice about settling claims on, or close to, the day of your final Tribunal hearing is given in the section Negotiations and settling the claim.

Conciliation role of the Labour Relations Agency

When a case is lodged the Labour Relations Agency contacts each of the parties offering both sides the services of the LRA to help conciliate the dispute without the need for a full hearing. The LRA may also, with the agreement of all parties, become involved in a dispute prior to a case being loged in the Tribunal. If you have a legal representative at this stage, it is important that you let the representative know if you are considering conciliation.

For more on the conciliation role of the LRA click here.