Damages for injuries to feelings are one of the most common types of damages the court may award in discrimination and harassment claims. The District Court, which has the exclusive jurisdiction to hear discrimination and harassment claims in Hong Kong, reviewed and updated the guidelines on the damages payable for injury to feelings in the case of 陈咏琴 v 第一流行钢琴教室有限公司.
Case summary
The Claimant, an employee, sued her former employer for disability discrimination following her termination due to a medical condition. The Employer did not provide a response to the claim, and as a result, the Court entered a default judgment for the Claimant.
The Claimant sought and was awarded damages for injury to feelings and loss of earnings. The Claimant was also awarded the costs of the proceedings.
Damages for injury to feelings
The Hong Kong courts have previously approved the principle of three broad bands of compensation for injury to feelings as established in the UK case of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102. These are known as the Vento Bands of compensation, with details as follows:
- Top Band: Sums within the range of £15,000 to £25,000 should be awarded in the most serious cases, such as when there has been a lengthy campaign of discriminatory harassment against the Claimant. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
- Middle Band: The middle band ranging from £5,000 to £15,000 should be awarded for serious cases that do not merit an award in the Top Band.
- Lower Band: Awards ranging from £500 to £5,000 are appropriate for less serious cases, such as when a discriminatory act was a one-off or isolated incident. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as too low to properly recognise the injury to feelings.
In light of the significant passage of time since the Vento decision, the Court, in this case, adjusted the Vento Bands to reflect Hong Kong’s local economic conditions and inflation. The new ranges of the Vento Bands are as follows:
- Top Band: HK$285,000 – HK$475,000
- Middle Band: HK$95,000 – HK$285,000
- Lower Band: HK$9,500 – HK$95,000
With reference to the updated Vento Bands, the Court awarded the Claimant HK$95,000 for damages for injury to feelings, placing it at the upper end of the Lower Band or the lowest end of the Middle Band. The Court took into account the following factors: the one-off nature of the discriminatory act, the Claimant was emotionally affected by the discriminatory act which affected her rehabilitation progress, and the Employer did not offer an apology.
Damages for loss of earnings
The Claimant sought three months’ lost earnings totalling HK$48,000, which was considered by the Court as reasonable in the circumstances. The Claimant was therefore granted the relief sought.
Costs
The general rule in discrimination and harassment cases is that each party shall bear its own costs in discrimination and harassment claims, unless the proceedings were initiated with malicious intent, were frivolous, or if there are special circumstances justifying such an award.
In this case, the Court found that the Employer’s failure to respond to the claim prolonged the legal proceedings and forced the Claimant to revisit the unpleasant discriminatory acts, which was considered at least frivolous, if not malicious. The absence of an apology from the Respondent was also taken into account. The Court deemed the Respondent’s conduct to be a “special circumstance” justifying an award of costs to the Claimant.
Key takeaways
Claims of unlawful discrimination and/or harassment are brought before the District Court as tort claims. In the context of employment, compensatory damages are primarily assessed based on the injury to feelings and loss of earnings resulting from the discriminatory and/or harassment act. Importantly, there is no limit to the amount of damages that may be awarded by the Court.
The updated Vento Bands, which represent an approximately 80% increase from the original range set by the UK courts in 2003, will serve as a reference for future cases. Consequently, the financial exposure for employers may be significantly higher.
Apart from monetary compensation, the Court also has the authority to grant other forms of relief to a successful claimant. This may include directing the employer to issue an apology, which could negatively impact the employer’s reputation, and the reinstatement of the employee’s employment.
The full judgment can be accessed here.
