De Souza v Vinci Construction UK Ltd

A 10% increase in general damages introduced in Simmons v Castle for civil proceedings does not apply to compensation awards in the Employment Tribunal. The increase was part of a costs-reform package intended to compensate civil claimants for losing the right to recover success fees and after-the-event insurance premiums. Employment Tribunal litigants had no equivalent recoverable-costs entitlement.

Employment Tribunals must account for inflation when assessing compensation, but this does not require a separate across-the-board uplift. The Employment Appeal Tribunal may depart from a previous decision of a judge of coordinate jurisdiction in exceptional circumstances, particularly where important general guidance is required.

The Employment Tribunal awarded the claimant compensation for disability discrimination, including £9,000 for injury to feelings and £3,300 for psychiatric injury. It applied the 10% increase associated with Simmons v Castle to the personal-injury award but not to the injury-to-feelings award.

The claimant appealed against the refusal to apply the increase to injury-to-feelings compensation. The respondent cross-appealed against applying it to personal-injury compensation. The central issue was whether the civil-proceedings uplift applied to awards made by Employment Tribunals.

1. Appeal dismissed; cross-appeal allowed. The 10% uplift in Simmons v Castle had no application to Employment Tribunal awards.
2. The uplift was introduced as part of the reforms implemented by Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Its purpose was to compensate civil claimants for losing the right to recover success fees and after-the-event insurance premiums as costs. Employment Tribunal proceedings were not the civil proceedings addressed by that reform package, and Tribunal litigants had not possessed equivalent rights.
3. The statutory power to award compensation under sections 119 and 124 of the Equality Act 2010 did not require the Tribunal to award precisely the same compensation as a county court. The reference to county-court compensation did not convert the Employment Tribunal’s assessment into an automatic application of the Simmons v Castle uplift.
4. The Vento guidelines remained guidance. Inflation was a matter for assessment in individual cases, and no separate universal inflation uplift was required. The approach in Bullimore v Pothecary Witham Weld confirmed that tribunals should assess non-pecuniary loss in current money without mechanically uprating earlier figures.
5. The Employment Appeal Tribunal was not strictly bound by decisions of judges of coordinate jurisdiction. Exceptional circumstances existed to justify declining to follow Sash Window Workshop v King, particularly because the issue was of general importance and required authoritative guidance. The earlier decision in Cadogan Hotels v Ozog had involved a concession and gave no reasons on the disputed point.
6. The Tribunal’s refusal to make an uplift for breach of the ACAS Code was a permissible exercise of discretion on the facts.

• Employment Tribunal: awarded compensation for disability discrimination, including injury to feelings and psychiatric injury. It applied the 10% uplift to the personal-injury award but not to injury to feelings.
• Employment Appeal Tribunal: dismissed the claimant’s appeal and allowed the respondent’s cross-appeal.