Does a 10% uplift apply to injury to feelings compensation?  

This case concerned the question whether the 10% uplift that applies to general damages in all civil claims for pain and suffering also applies to claims in the Employment Tribunal for personal injury or injury to feelings.

The Law

If an employee wins a discrimination claim against their employer, an Employment Tribunal can award compensation for injury to feelings in addition to compensation for financial losses. This is to compensate for the upset, hurt and distress the discrimination has caused. In some serious cases, an act of discrimination can cause actual injury to an employee’s mental or physical health, such as psychiatric injury. In such cases, the Tribunal can award additional compensation for personal injury. Non employment discrimination claims heard in the County Court award compensation on a similar basis to the Tribunals, however, compensation for personal injury is subject to a 10% uplift as a result of a decision made in a case called Simmons v Castle [2012] EWCA Civ 1039.

Since that case, conflicting opinion grew as to whether a 10% uplift also applied to similar awards made in the Employment Tribunal. The basis for this argument was section 124(6) of the Equality Act 2010 which states that compensation for employment discrimination should be the same as for a non-employment discrimination claim in the County Court.

The Facts

Ms De Souza was employed as a cleaner by Vinci Construction (UK) Ltd (the Employer). After they dismissed her, she won her claim for disability discrimination in the Employment Tribunal and was awarded compensation for injury to feelings and psychiatric injury.

Ms De Souza was awarded £9,000 for injury to feelings and £3,300 for the psychiatric injury. An uplift of 10% was applied to the award for psychiatric injury to correspond with that which would be applied in the county court for a non- employment discrimination claim.

Ms De Souza appealed to the Employment Appeal Tribunal arguing that her compensation for injury to feelings should also have been uplifted. The Appeal Tribunal dismissed her claim so she appealed again this time to the Court of Appeal.

The Decision

The Court of Appeal agreed with Ms De Souza and upheld her claim on the basis of section 124(6) of the Equality Act 2010 which states that compensation for employment discrimination shall be the same as that which could be awarded by the county court in respect of a non-employment claim.

In the Court’s view, this meant that the amount awarded by an employment tribunal for any particular head of loss should be the same as if an award for an identical loss had been made in the county court.

Points to note

• This case has put an end to conflicting case law on the subject. It is clear that a 10% uplift will apply to all injury and injury to feelings awards in the Employment Tribunal.

•  It is not good news for employers on the wrong end of a discrimination claim, particularly, where, as in this case, the alleged discrimination is said to have caused or exacerbated an injury to the employee’s mental or physical health.

Action to take

1) Implement an Equal Opportunities Policy and inform staff about the policy and the types of behaviour that will not be tolerated in the workplace. Ensure managers are properly trained in diversity and how to approach issues of discrimination.

2) Respond to and deal with any complaints of discrimination promptly, fairly and confidentially.

3)  Ensure dismissals are carried out fairly in accordance with the ACAS code and carefully assess whether discrimination may be an issue before taking any action.

EURIDES PEREIRA DE SOUZA v VINCI CONSTRUCTION (UK) LTD – Court of Appeal

You can read the full judgement here

This update has been prepared by Miranda Amos

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