Work out how much compensation you could get for discrimination
To work out how much you can ask for, you need to consider what a tribunal can order your employer to pay you if you win your discrimination claim. The tribunal can order them to pay compensation for:
- any money you've lost because of the discrimination - this is called financial loss and covers loss up to when you’re likely to get a new job if you’ve lost your job
- hurt or distress you've suffered because of the discrimination - this is called 'injury to feelings'
- a personal injury, such as depression or a physical injury, caused by the discrimination
- particularly bad behaviour by your employer - this is called ‘aggravated damages’
You might have other claims as well as discrimination. Those claims have different rules about compensation. The most common claims that people have with discrimination claims are for:
- unpaid wages
- unpaid holiday pay
- failure to follow the flexible working procedure
If you’ve lost your job, you might also be owed:
- a basic award if you’ve been unfairly dismissed and have worked for your employer for more than 2 years
Add these sums to your claim or make sure they’re included in a settlement agreement. You should draw up a list of the amounts you’re claiming. This list is called a ‘schedule of loss’.
Working out how much compensation you could get will help you decide what to do if your employer offers you money to stop the case from going to tribunal.
Work out what money you’ve lost
You might have lost money for a number of reasons - like because you’ve lost your job or if the discrimination has caused you to be off sick.
The money you’ve lost could include:
- your net pay
- pension contributions
- work-related benefits - like use of a company car or mobile phone, loss of free accommodation, staff discounts, private health or life insurance
If you got an annual tax statement that will show the value of the benefit. If not, you’ll have to try to work it out, for example, if you lost free accommodation, find out how much it would cost to rent something similar. Motoring organisations like the AA or RAC can give you an idea of how much it costs to run a car.
You might also have had extra expenses - like the cost of going to the Jobcentre to sign on.
You might also have the cost of getting medical help with an illness caused by the discrimination - like prescription charges for antidepressants or counselling you couldn’t get on the NHS.
Keep receipts or invoices for any extra expenses as you’ll need these as evidence.
If you’re still working for your employer
You can get compensation for any money you’ve lost because of the discrimination. This could be the difference in salary if you didn’t get a promotion.
As a starting point, work out what your losses would be if it takes you a year to find a job which pays the same as the promotion.
A tribunal would consider how long it’s likely to take for you to find something similar to the promotion - with your current employer or another one. You’ll need to show that you’re applying for promotions elsewhere.
If you lost wages because you were off sick, work out the difference between what you earned and what you would have earned if you hadn’t been off sick because of the discrimination.
If you’ve lost your job
Work out what money you’ve lost from the date you lost your job to the date of the hearing. You’ll need to prove this using documents like payslips, your P60, or anything to show how much you earned, especially if your pay varied from week to week.
Compensation for loss of wages in the future
The tribunal can also award compensation for loss of future earnings. You’ll get more compensation if the tribunal thinks it will take you longer to get a job. You should:
- explain the impact of the discrimination on you if it means it’s taken you longer to find a job
- bring evidence to show how hard it is to find jobs where you live
- have evidence of what you’ve done to find another job
Minimise your losses
You’ll need to show you’ve tried to minimise your financial losses - this is called ‘mitigating your loss’. You could do this by keeping:
- a diary which shows what you’ve done to look for another job
- a record of any training you’ve done to help you get a job
- copies of job applications
- a record of interviews you attended
You’ll be expected to claim any welfare benefits you’re entitled to. These will be taken out of any compensation you get.
If you haven’t been able to look for a job because you were ill, you’ll need to show evidence of that too - like a medical report.
What a tribunal will consider when estimating how long it will take you to get a job
You should tell the tribunal things like:
- limitations on what jobs you can apply for - like if you have a disability or caring responsibilities
- if your work is skilled or specialist so there aren’t many vacancies
- you don’t have your own transport and public transport links are limited
If you’ve found a job which pays less
If you can’t find a job like your old job, a tribunal might expect you to take a job that pays less while you look for one that pays the same as your old one.
As a starting point, work out what your losses would be if it takes you a year to find a job which pays the same as your old one. The tribunal will expect you to explain if it would be likely to take you less time or longer. You’ll need to explain your situation and how many jobs like that are available.
If your new job has worse benefits
You can also claim compensation if your new job has benefits that aren’t as good as your previous job - like if your old job had a final salary pension scheme but your new one doesn’t.
Compensation if you lost your job while you were pregnant
What you can claim depends on what period you’re claiming for. You’ll need to think about the 3 different periods set out in this table:
|What you should claim
|From the date of your dismissal to the start of your maternity leave
|The income and benefits you would have been paid during this time.
Any maternity benefits you’ve lost. Your employer might have to pay you statutory maternity pay (SMP) even if you no longer work for them.
If they don’t, you might be able to claim Maternity Allowance (MA). The SMP and MA rates are the same except for the first 6 weeks when SMP is 90% of your normal pay. Your loss will be the difference between the SMP you would have got and the MA you will get.
If your employer pays you contractual maternity pay, claim the difference between that and any MA you get.
|From when you would have gone back to work to starting a new job
Your lost earnings from the date you would have gone back to work after your maternity leave to the date when you’re likely to find a new job.
If you weren’t planning to go back to work after your maternity leave, you can’t claim any loss for this period.
Sally’s dismissed when she’s 4 months pregnant. She would have worked right up to a week or two before her due date then taken her full year’s maternity leave and gone back to work afterwards. She’ll get Maternity Allowance but won’t be entitled to Statutory Maternity Pay (SMP).
If she hadn’t been dismissed, she would have been entitled to SMP. She thinks it will take her 6 months to find a new job.
She can claim:
If you're too ill to work
You might be able to claim loss of earnings and other expenses if, for example:
- the discrimination caused you to suffer depression and you can’t work because of it
- you can’t work because your employer won’t make adjustments for your disability
- you’ve been forced to go off sick because your employer won’t take steps to protect your health and safety while you’re pregnant
You won’t be able to claim any loss of earnings if you can’t work for reasons which aren’t linked to the discrimination.
Tara’s dismissal was race discrimination but she broke her ankle 4 weeks later. She would have been unable to work for 8 weeks even if she hadn’t been discriminated against.
She can’t claim any losses for those weeks unless the sick pay she would have received from her employer is more than she gets in welfare benefits for those weeks.
Check how much you can claim for hurt or distress - injury to feelings awards
You can claim for the emotional distress the discrimination has caused you - this is called ‘injury to feelings’. You’ll need to say how the discrimination made you feel. Ask your family, friends, medical professionals or support workers if they’ll be witnesses to how the discrimination affected you.
If you saw your GP about the impact of the discrimination on you, you could ask your GP for a report - check if they’ll charge you a fee for this.
You can claim compensation for injury to feelings for almost any discrimination claim. If you’re still working for your employer, it might be the only financial claim you can make.
The minimum award for injury to feelings should be around £1,000.
Compensation for injury to feelings is split into three bands called ‘Vento bands’, based on the case of Vento v Chief Constable of West Yorkshire Police (2002).
You can ask for a higher amount for injury to feelings if your situation means you’re badly affected - like if you already had a stress-related illness when you were discriminated against. The bands are as follows with sample awards:
|£1,100 to £11,200
|For less serious cases such as a one-off act.
|£11,200 to £33,700
|For cases which are serious but don't fall into the top band. For example, a serious one-off act of harassment or where you lost your job because of the discrimination.
|£33,700 to £56,200
|For the most serious cases of discrimination. For example, where there's been a lengthy campaign of discriminatory harassment.
What a tribunal will consider in deciding injury to feelings awards
There are various factors a tribunal will take into account when deciding how much to award for injury to feelings. These include:
- if the discrimination was deliberate - you’ll usually get more for harassment than for unintentional discrimination, particularly indirect discrimination (like a refusal of part-time working)
- how serious the discrimination was and how long it lasted
- how your employer behaved after the discrimination - if they apologised and dealt with it promptly, you’re likely to get less; if they ignored it or accused you of lying you’re likely to get more
- the effect on you - the more serious the effects and the longer they last, the more you’ll get
- if you needed to see your GP - this suggests a more serious injury to feelings and so potentially a higher award
Check how much you can claim if you suffered an injury - personal injury awards
You might have suffered a physical injury or a mental health problem because of the discrimination. If so, you can claim for that too. This is called a personal injury.
In most discrimination cases, the injury to feelings compensation covers impact on your health. In some rare cases, you might have had a physical injury or a more serious mental health problem. If so, you can make an additional claim for personal injury.
You’ll need a medical report or other evidence to prove the discrimination caused the health problem.
How much you could get depends on the injury. You should get specialist advice.
Check if you can claim aggravated damages
A tribunal can award you aggravated damages if your employer:
- has deliberately discriminated against you when they knew what they were doing was against the law, or
- acted in a particularly unpleasant manner when they defend your claim
It's unusual to get an award for aggravated damages. You might get one if your employer meant to hurt you or if they were rude or dismissive at the hearing. In one case, a tribunal awarded £2,000 when the employer tried to prove the employee was lying and wouldn’t accept he was disabled despite overwhelming medical evidence.
How much is the interest on your award
You should ask for interest to be added to your claim.
Interest before judgment
A tribunal can award you interest on the injury to feelings and financial loss parts of your compensation. The rate of interest is currently 8% a year. To get a daily rate, divide the amount of your award by 365 and then multiply it by 8%. See the example schedule of loss for how to calculate interest.
For injury to feelings, you’ll get interest from the date the discrimination took place to the date of the hearing.
For financial loss, you’ll get interest from a date halfway between the date the discrimination took place and the date when a tribunal works out your compensation.
The rules on interest are in section 139 of the Equality Act 2010.
Interest after judgment
If your employer doesn’t pay you compensation within 14 days of the tribunal’s decision, you can also get interest at 8% from the date the compensation was calculated.
When your compensation can be reduced
Your claim for financial loss can be reduced if you got money from a new job, temporary work or benefits.
It can also be reduced if there’s a chance that you would have been dismissed even if your employer hadn’t discriminated against you.
For example, they might dismiss you before trying to make reasonable adjustments. This means they’ll have discriminated against you. They could argue that the adjustments wouldn’t have worked and that you’d have been dismissed anyway.
If a tribunal accepts your employer’s argument, it might reduce your compensation. If it thinks you would have been dismissed 6 months later, it’ll only award you 6 months’ compensation. If it thinks there’s a 50% chance that you would have been dismissed anyway, it’ll reduce your losses by 50%.
Prepare a schedule of loss
Once you’ve worked out what you can claim, it’s helpful to set it all out in a list called a ‘schedule of loss’ or a ‘statement of remedy’. There’s no set format for one - you just need to make it clear how much you think your case is worth and why.
Put your name and ‘Schedule of loss’ at the top of the page. Add the date on which you’re working out your losses. If you’ve already started tribunal proceedings and have a case number, add that number and the case name.
It’s helpful to start your schedule of loss with a background section setting out important dates and amounts.
Then put headings and numbered sections for each of the types of compensation you’re claiming - like loss of earnings and injury to feelings. These are called ‘heads of claim’.
End your schedule with a heading for interest - you’ll usually get this anyway but it’s useful to include as a reminder.
Loss of earnings
Set out what money you’ve lost under this heading - like your salary, if you were dismissed or the difference in salary if you got a new, lower-paid job.
If you got any welfare benefits - like Jobseeker’s Allowance - you should say so and include the amount you received. You’ll have to deduct this from your claim for loss of earnings.
If your financial loss is ongoing - like if you haven’t found a new job - say how long you think it will be before you find a new job, or one that pays a similar amount to your old one. People normally estimate in 3-month blocks - like 3, 6, 9 or 12 months.
This can be difficult to estimate and you’ll have to make sure you have evidence to back up what you say - like job adverts showing your job was better paid than other similar jobs in the area.
Other financial loss
Include headings for any other losses or expenses, like your pension loss or travel costs, and show how you’ve worked them out.
Injury to feelings
Summarise the effects the discrimination has had on you. You don’t need to give full details here as they’ll be in the evidence you give to the tribunal.
Don’t ask for the maximum amount if you can’t justify it. If you ask for an unrealistic amount, the tribunal won’t pay much attention to your schedule of loss. It will also make it more difficult for you to negotiate a settlement with your employer.
Example schedule of loss
This example is for a claim by Helen Jones who was dismissed after 6 months when her employer found out she had a mental illness. She wrote her schedule on 10 August 2018.
Don’t just copy this example. The facts of your case will be different and you’ll be asking for different amounts. If you just copy this example, you might be asking for less than you could get.
If you’re claiming unfair dismissal, you’ll need to include your basic award as well. Read our advice on working out what you can claim for unfair dismissal.
HELEN JONES: SCHEDULE OF LOSS AT 17 June 2018
Date I started employment: 8 June 2017
Date I was dismissed: 17 December 2017
My gross pay: £1,900 per month
My net pay: £1,400 per month
1 LOSS OF EARNINGS
After I was dismissed I claimed Jobseeker’s Allowance.
Past loss of earnings from 18 December 2017 to 16 June 2018
6 months’ losses, at £1,400 a month = £8,400
DEDUCT the Jobseeker’s Allowance I received - £1,900
Total loss of earnings: £8,400 - £1,900 = £6,500
Future loss of earnings from 17 June 2018
I think it could take another 6 months from the 17 June 2018 (the date of this
calculation) to find a job that pays the same as my old job.
6 months future losses at £1,400 per month = £8,400
2 INJURY TO FEELINGS
I was devastated to lose a job I was enjoying. It affected my confidence even
after I started my new job. I took prescription sleeping tablets for 2 months
afterwards, because I found it so hard to sleep.
I believe that an appropriate injury to feelings award would be in the middle
band of the ‘Vento’ guidelines, currently £11,200 to £33,700. I’m therefore
Past financial loss (£6,500)
Interest at 8% per year on £6,500 = £520 per year
Midpoint between 17 December 2017 and 17 June 2018 = 18 March 2018
From 18 March 2018 to 17 June 2018 = 92 days
92 days ÷ 365 days x £520 = £131.07
Injury to feelings (£12,000)
Date of discrimination: 17 December 2017
Date of calculation: 17 June 2018
Interest at 8% per year on £12,000 = £960 per year
From 17 December 2017 to 17 June 2018 = 183 days
183 days ÷ 365 days x £960 = £481.32