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Can an uplift to 'injury to feelings' awards be applied in discrimination cases?

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Landmark legal ruling changes the way professional bodies deal with their members

In July 2012, the Court of Appeal’s decision in Simmons v Castle confirmed that a 10% increase in non-pecuniary damages should apply to personal injury and similar cases in the civil courts.

This did not, however, extend to cases heard outside of the civil courts, for example the employment tribunal. 

In 2013, the employment tribunal heard a case, De Souza, in which the claimant, a cleaner, succeeded in a claim for disability discrimination against her employer. The tribunal awarded the claimant £9,000 for injury to feelings pursuant to the Vento guidelines. The tribunal also awarded £3,000 for psychiatric injury. The tribunal considered the case of Simmons as to whether the uplift should be applied to both awards, but decided to apply it to the psychiatric injury award only.

The claimant proceeded to appeal to the employment appeal tribunal (EAT). In 2015, the employment appeal tribunal found that Simmons applied to neither the psychiatric injury nor the injury to feelings award.

The claimant appealed to the Court of Appeal, with the hearing taking place on 23 May 2017. The Court of Appeal, by way of the judgment handed down on 4 July 2017, overturned the EAT’s decision and submitted that as s.124(6) Equality Act 2010 required discrimination awards to correspond with that which could be awarded by the County Court. The Court of Appeal therefore held that the Simmons uplifts should be applied to both injury to feelings and psychiatric injury.

While the recent judgment in De Souza v Vinci Construction (UK) Ltd seems to conclude the debate in the competing authorities on this point, only future case law will decide whether this is taken as a precedent.

If you need further advice regarding discrimination or employment law, please contact our department on 01616 966 229.

By Victoria Fagan, graduate paralegal in the employment law team.