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10% Simmons v Castle Uplift Applies to Discrimination Compensation in the Employment Tribunal

Section 124(6) of the Equality Act 2010 (‘the Act’) provides that discrimination awards in the employment tribunal correspond to awards which could be awarded by a county court under Section 119 of the Act.

The issue in Da Souza v Vinci Construction UK Limited [2017] EWCA Civ 879 was whether a 10% uplift applicable in compensation for torts since the judgment in Simmons v Castle in 2012, which reflects reforms to civil litigation costs, applied to awards of compensation for injury to feelings and for psychiatric injury in discrimination cases in employment tribunal.  Several recent EAT cases addressing this issue reached different conclusions.

The Background

Mrs Da Souza was employed as a cleaner.  She brought employment tribunal claims for, among other matters, disability discrimination, including harassment and victimisation.  Her claims included allegations of bullying and other inappropriate treatment. The Tribunal awarded her £3,300 for the exacerbation of a psychiatric illness, which included a 10% uplift pursuant to Simmons v Castle.  The Tribunal applied no such uplift to Mrs Da Souza’s award for injury to feelings in the amount of £9,000.  The EAT decided that the rationale for the 10% uplift in tort claims did not apply to discrimination claims in the employment tribunal and disallowed the uplift added to Mrs Da Souza’s psychiatric injury award.

The Judgment

The Court of Appeal unanimously allowed the appeal.  The court took the language of Section 124(6) of the Act as its starting point, noting that the language meant that the amount awarded by an employment tribunal for a particular head of loss should be same as the award for an identical loss in the county court.  On a purposive construction, acts of discrimination that are conceptually the same would attract the same compensation regardless of whether they occurred in an employment context or a non-employment context.  While the rationale for the 10% uplift – namely to reflect the fact that following the civil litigation cost reforms successful claimants were no longer able to recover success fees and ATE premiums – did not apply in the employment tribunal with an entirely different costs regime, there was no justification for qualifying the words of the statute, which required that awards in the county court and in the employment tribunal correspond. 

Barbara Zeitler / 27th Jul 2017


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