The Court of Appeal in Simmons v Castle, held that the level of damages in certain types of claims should be increased by 10% after 1 April 2013, to reflect the fact that claimants would no longer be able to recover success fees and after the event insurance premiums from Respondents in the civil courts.
In Da Souza v Vinci Construction the claimant, who had been a cleaner, was successful in her claim for disability discrimination. She was awarded £9000 for injury to feelings and £3000 for personal (psychiatric) injury. Having considered the Court of Appeal’s decision in Simmons v Castle, the original Tribunal awarded the Claimant an uplift of 10% but only in respect of her personal injury award (a total of £3,300). She appealed, claiming that the uplift should have been applied to both awards while the Respondent cross appealed arguing that it should not have been awarded to either award. The EAT found that it should not apply to either award on the basis that the uplift had no place in the Employment Tribunal.
Since Simmons v Castle, decisions in the EAT have conflicted as to whether the 10% uplift should be applied to personal injury and injury to feelings awards under the Equality Act 2010, as this states that the amount of compensation awarded should correspond to the amount which could be awarded by the county court.
However, in this case the Court of Appeal has now hopefully brought the uncertainty to an end as it confirmed the uplift should be applied to both injury to feelings and psychiatric injury. Consequently, the Claimant received a 10% increase to her injury to feelings award (a total of £9,900)and 10% for her personal (psychiatric) injury (a total of £3,300).
The judgement also suggested the President of the Employment Tribunal publish new guidance setting out new bands of compensation for injury to feelings.