The Court of Appeal has recently provided clarification as to whether uplifts in damages should be applied to injury to feelings awards in Employment Tribunal discrimination cases.
The personal injury case of Simmons vs Castle provides authority for an uplift to damages of 10% in certain types of personal injury claims.
The increase in compensation in personal injury claims was ordered by the Court of Appeal to compensate claimants for the fact that they could no longer recover success fees and after the event insurance premiums from their opponent.
Using the same authority, an Employment Tribunal case, Pereira De Souza v Vinci Construction UK Limited [2017 EWCA Civ 879] argued that the 10% uplift should also be applied in Employment Tribunal proceedings where a claimant is seeking compensation for injury to feelings and/or psychiatric injury.
The level of damages for injury to feelings, in Employment Tribunal proceedings, has traditionally been, and will still be applicable.
In the De Souza case, the claimant brought a claim against her former employers for disability discrimination and was awarded £12,000 for injury to feelings and psychiatric injury arising out of the discrimination that she was subjected to.
However, the Employment Tribunal refused to apply the Simmons v Castle 10% uplift, which would have been £1200 on top of the £12,000 award.
Mrs De Souza’s appeal to the EAT was dismissed but both decisions were reversed at the Court of Appeal when, Mr Lord Justice Underhill, felt that the wording of Section 124(6) of the Equality Act 2010 suggested that compensation in Employment Tribunals should mirror compensation awards in the County Court.
Claimant’s and their representatives should therefore be aware of this Judgment when pleading claims and constructing Schedules of Loss.