Kerry Underwood

EMPLOYMENT TRIBUNALS AND SIMMONS V CASTLE 10% UPLIFT

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In De Souza v Vinci Construction (UK) Limited [2017] EWCA Civ 879

the Court of Appeal held that in Employment Tribunal awards for personal injury and injury to feelings, both of those types of award attracted the 10% general damages uplift arising from the Court of Appeal’s decision in Simmons v Castle [2013] 1 ALL E.R 334.

That uplift had been intended to compensate partially Claimants for the fact that they could no longer recover the success fee from the Defendant and would generally have to pay that element of costs to their own solicitor out of damages.

The Court of Appeal in Simmons made it clear that this uplift applied even in circumstances where the client would not in fact have to pay anything out of damages, for example a legally-aided client.

Such clients would receive a windfall, but that was the price to pay for unification and consistency of general damages awards.

Generally no costs are recoverable in Employment Tribunals and so Claimants would not lose out by the loss of recoverability as there has never been recoverability in that forum.

Here, the Court of Appeal held that Section 124(6) of the Equality Act 2010 meant that the amount awarded by an Employment Tribunal for a particular head of loss must be the same as if an award for the same loss had been made in the County Court.

It would be unacceptable for compensation to be different depending upon which part of the Equality Act 2010 applied, that is whether the claim was in the Employment Tribunal or the County Court.

The Court of Appeal observed that no problem should arise in relation to damages for psychiatric injury as the Judicial College Guidelines could incorporate the uplift.

The position was different in relation to awards for injury to feelings, but the same effect could be achieved by applying the uplift to the Vento Bands set out in

Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102.

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Written by kerryunderwood

October 5, 2017 at 9:06 am

Posted in Uncategorized

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