Introduction

Discrimination can deeply affect emotional well-beings of the victims. In Hong Kong, the discrimination ordinances including the Sex Discrimination Ordinance (Cap. 480), Disability Discrimination Ordinance (Cap. 487), Family Status Discrimination Ordinance (Cap. 527), and Race Discrimination Ordinance (Cap. 602) allow victims of discrimination to seek damages for injury to feelings. This type of damages focuses on the emotional pain, humiliation, or distress caused by discrimination, separate from financial losses like lost wages.

The Vento bands: A Guide for Compensation

Hong Kong courts adopt a framework from the English courts called the Vento bands which were named after a decision by the Court of Appeal of England and Wales, Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, to determine the amount of damages for injury to feelings. The Vento bands set out three bands of damages based on the seriousness of the discrimination:

As summarised in Eddie Stobart Limited v Miss Caitlin Graham [2025] EAT 14, an English Employment Appeal Tribunal case, the factors and categories of evidence that the courts consider which band of damages should apply include:

1.      The victim’s account: The person’s description of their emotional harm is the starting point. The courts will also examine if the person was particularly vulnerable (e.g., an expectant mother under extra stress);

2.      Duration of impact: The courts will consider the duration of the injured feelings, which may include an acute stage, a recovery stage, and residual symptoms, and in serious cases a prognosis will be relevant; 

3.      Impact on work: The courts will also look at how the discrimination affected the person’s job satisfaction, self-esteem, or future career; 

4.      Impact on personal life: The courts may further consider the effects of the discrimination on personal relationships and hobbies, quality of life and personal life; and the evidence from a third-party’s observations may be support the claims; and

5.      Drawing inferences: If there are insufficient direct evidence on the injury to feelings, the courts may infer the impacts based on the nature and manner of discrimination.

Adjustments of the Vento bands for inflation

In a recent Hong Kong decision 陳詠琴 及 第一流行鋼琴教室有限公司 [2024] HKDC 2046, the District Court adjusted the Vento bands to account for inflation and Hong Kong’s economic conditions. The case involved an employee at a piano learning centre who was fired during her probation period because of a disability and related sick leave. She sued her employer for disability discrimination and sought for, among others, damages for injury to feelings.

Court’s decision

The District Court found the employer’s actions discriminatory and classified the case as either the most serious at the bottom band, or the lowest at the middle band. However, in light of the significant passage of time since the Vento decision, the Court referred to Da’Bell v National Society for Prevention of Cruelty to Children [2010] IRLR 19, an English Employment Appeal Tribunal case, and recognized the necessity to adjust the Vento bands in today’s economic context. To reflect Hong Kong’s local economic conditions and inflation, the District Court adjusted the Vento bands and set new ranges:

·           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 District Court awarded the employee HK$95,000 for injury to feelings for the following reasons:

1.       the discrimination was a one-time act;

2.       the employee had a good relationship with colleagues and performed well, with no prior complaints;

3.       the employer dismissed her abruptly, just days before her probation ended, seemingly to avoid paying a one-month notice or compensation;

4.       the employee was diagnosed with her disability shortly before the dismissal, making her especially vulnerable due to anxiety and worry;

5.       the dismissal caused emotional distress, disrupted her sleep, and slowed her recovery; and

6.       the employer never apologized and even expanded its business after the claim, adding to the employee’s distress.

Takeaway

The decision in 陳詠琴 strengthens protections against discrimination by updating the Vento bands and increases the quantum employers may be liable to in successful discrimination claims, with compensation ranging from HK$9,500 to HK$475,000 based on the severity of the case. Employers should ensure compliance with the discrimination ordinances and recognize their rights and duties. Employees who suspect they have been discriminated should consult legal professionals to understand their rights as well. As always, if in doubt, it is advisable to seek legal advice.