The Court of Appeal has handed down its decision in the long running saga of whether or not we should be applying the 10% uplift in damages established by the Court of Appeal in Simmons v Castle in the employment tribunal.
The case of De Souza v Vinci Construction (UK) Ltd was heard before the EAT last year before HH Judge Serota QC sitting alone who decided that the uplift established in Simmons v Castle should not apply to either the personal injury or the injury to feeling elements of compensation. This decision was appealed to the Court of Appeal. In the meantime a number of other decisions before the EAT last year decided the opposite and held that the 10% uplift should apply.
The Court of Appeal has unanimously allowed the appeal. The starting point was s124(6) of the Equality Act 2010 which provided that compensation for employment discrimination should be the same as that which could be awarded by the county court in respect of a non-employment claim. The rationale for the Simmons v Castle (linked to the Jackson reforms) uplift may not apply in the employment tribunal but the Court felt that the fact that tribunal claimants may get the benefit of an uplift designed to compensate for a reduction in net recovery which those claimants had not suffered did not detract from the clear words of s124(6) and the underlying purpose of the section.
The Court of Appeal said that the uplift in respect of the bands for injury to feelings was not quite as straightforward as these bands had been uprated by case law to reflect inflation and as such the Court felt that Presidential Guidance should be issued. Watch this space therefore for the guidance from the President of the Employment Tribunals (England and Wales).