VENTO BANDS: DISCRIMINATION CASES
As many of you may already know, if a Claimant is successful in their claim of discrimination, the tribunal will make a financial award based on the ‘injury to feelings’ for the ‘hurt, upset and humiliation’ caused by the discriminatory act. These awards are called ‘Vento awards’, appropriately named after the case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, which set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards
Each year these these are increased in line with Retail Price Index (RPI).
On 25 March 2024, the President for Employment Tribunals in England and Wales issued Seventh Addendum to Presidential Guidance originally issued on 5 September 2017 for the revised Vento bands to apply to cases lodged on or after 6 April 2024 which are:
- Lower Band of £1,200 to £11,700 (up from a ceiling of £11,200) – less serious cases;
- Middle Band of £11,700 to £35,200 (up from a ceiling of £33,700) – for cases that do not merit an award in the upper band);
- Upper Band of £35,200 to £58,700 (up from a ceiling of £56,200) – for the most serious cases, with the most exceptional cases capable of exceeding £58,700.
Whilst this is Presidential Guidance for England and Wales only, it tends to be followed in Northern Ireland by our Tribunals.
Link to full Article:- Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102,
The Labour Relations Agency, in partnership with the Northern Ireland Committee for the Irish Congress of Trade Unions (NIC-ICTU) and endorsed by Women in Business, has developed a Guide on Eliminating Sexual Harassment from the Modern Workplace.
It contains a sample Sexual Harassment Policy and is aimed at employers, employees and their representatives.
In the introduction, the Guide sets out the extent of sexual harassment in the workplace. Indeed, the Equality Commission for Northern Ireland confirmed it is the area they receive most queries on.
The Guide defines sexual harassment in a workplace setting as:
“actions or behaviour with the same purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. Sexual harassment occurs “where a person subjects another to unwanted conduct of a sexual nature”.
Examples of types of physical, verbal and non-verbal conduct are provided (e.g. non-verbal conduct would include the display of sexually explicit or suggestive material such as calendars).
The Guide advocates having a stand-alone Sexual Harassment Policy and notes that many simply do not report incidences of sexual harassment.
The Guide then sets out the legal framework in some detail covering the law pertaining to different types of claims, including third party harassment (which differs in Northern Ireland as compared to Great Britain).
In Great Britain, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will replace the existing statutory defence; the statutory defence requires employers to take all steps reasonably practicable to prevent harassment occurring. Instead, there will be a positive duty on employers to take positive steps to prevent sexual harassment and employment tribunals will have the power to provide an uplift of up to 25% in compensation when an employer has failed to take reasonable steps to prevent it. The Guide advocates for the Bystander Approach (also discussed at the Domestic Abuse Conference recently).
The Guide then reviews two recent tribunal cases, reminding employers that having policies and procedures in place is simply not enough and the need for proper investigation.
The Guide also sets out pro-active steps that can be taken, which includes:
- Gather data;
- Do not downplay harassment;
- Have in place an effective sexual harassment policy;
- Takes a zero-tolerance approach to sexual harassment;
- Encourage employees to report sexual harassment and ensure know who / how to report sexual harassment;
- Take allegations seriously, investigate properly and protect from victimisation;
- Train all employees and train managers; and
- Ensure leaders visibly communicate commitment.
Comment
The First and Deputy First Ministers recently confirmed that Ending Violence Against Women and Girls is one of the Executive’s top priorities.
Conor Murphy, Economy Minster, has also made it clear that co-design and co-partnership is the way forward so this Guide very apt. It is likely that this approach will be used in other areas.
(Please see link below).
Eliminating Sexual Harassment from the Modern Workplace
INQUIRY LAUNCHED INTO HUMAN RIGHTS AT WORK
The Joint Committee on Human Rights has launched a new inquiry to examine how human rights are protected at work.
In its introduction it states:
‘Work is a central aspect of people’s live as it often provides their principal source of income and can provide a sense of purpose. Employment can also contribute to an individual’s feelings of self-respect and dignity. However, the world of work has also been recognised as involving an imbalance of power between employer and workers This imbalance can lead to exploitation, discrimination and other harmful practices.’
The Committee will be examining:
- Freedom of association and the Right to STRIKE (Article 11)
- Right to privacy and Surveillance at Work (Article 8)
- Freedom of Thought Conscience and Religion and Freedom of Expression in the Workplace (Art 9)
- Labour Market Exploitation (Art 4)
- Retained EU Law and workers’ rights – looking at extent UK’s compliance with human rights obligations and protection of is dependent on retained EU law?
- International Human Rights Treaties compliance including ILO
The Committee states it is undertaking a separate piece of work providing legislative scrutiny of the Strikes (Minimum Service Levels) Bill.
You can read it Inquiry Launched into Human Rights at Work
The closing date for written submissions is 24 March 2023. We welcome any comments Members may have on this.
NEW EQUALITY COMMISSION GUIDANCE FOR EMPLOYERS: A GUIDE TO EMPLOYMENT EQUALITY MONITORING
The Equality Commission for Northern Ireland has published new Guidance titled A Guide to Employment Equality Monitoring for employers on how to conduct employment equality monitoring for the purpose of promoting equality of opportunity in employment.
It outlines what employers should consider when planning to monitor and it offers some practical suggestions, such as sample questions, which will be very welcome by businesses
The Guide covers both mandatory monitoring and also extending the monitoring into other non-mandatory areas:
- Gender Reassignment & Gender Identity questions
- Racial and ethnic group questions
- Age
- Disability questions
- Sexual orientation question
- Marital or civil partnership status question
- Dependants and caring responsibilities
It is divided into five Chapters. Chapter 3 is devoted to looking in details at the data protection issues arising from monitoring.
Chapter 1: Why monitor?
Chapter 2: The equality law context covers
– Mandatory monitoring
– Voluntary Workforce Monitoring
– Monitoring carried out by designated public authorities
Chapter 3: Understanding the data protection laws
Chapter 4: How to monitor
– Plan
– Collect
– Analyse
– Review
Chapter 5: Sample monitoring questionnaire