What is hurt and humiliation worth as compensation?

• Published date: 14 May 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Health & Safety, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Arbitration & Dispute Resolution, Personal Injury, Libel & Defamation
• Law Firm: Cavell Leitch
• Author: Ms Sophie Logie

Calculating a monetary value which fairly represents emotional harm can be difficult. After all, how do you set a figure to compensate a person's feelings?

If an employee pursues a personal grievance in the Employment Relations Authority or Employment Court, and is successful, they may be awarded compensation for hurt and humiliation under 123(1)(c)(i) of the Employment Relations Act 2000. The negotiation of an amount for compensation is also common in private settlement arrangements.

However, calculating a monetary value which fairly represents emotional harm can be difficult. After all, how do you set a figure to compensate a person's feelings?

Band system

In 2017, the Authority and Court implemented a band approach, which has now been widely recognised. Compensation awards are accepted as being assessed in the following three bands:

• Band 1 - Low level loss/damage
• Band 2 - Mid-range loss/damage
• Band 3 - High level loss/damage

These bands were introduced by the Court in Archibald, where a nurse's work conditions changed without consultation and she was eventually made redundant. ¹

The Court awarded the nurse $20,000 under Band 2 and described the effect on her as a deep sense of hurt that she had not been listened to and that her concerns had been "unceremoniously brushed to one side". However, it was left unclear as to what sort of conduct would fall within the other Bands or the likely quantum.

Further guidance was provided in Richora in 2018 , where the Court concluded that the bands are worth the following: ²

• Band 1 - $0 - $10,000
• Band 2 - $10,000 - $40,000
• Band 3 - over $40,000

In this case, the Court also took the following five-step approach to the assessment of compensation for hurt and humiliation:

• Step 1 - What was the harm experienced by the employee?
• Step 2 - What was the extent of the employee's loss?
• Step 3 - Where on the spectrum of cases does this sit in terms of harm suffered?
• Step 4 - Where on the spectrum of cases does this sit in terms of quantum?
• Step 5 - What is a fair and just award in the present case?

There has been a significant upswing in...