Summary
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.
Factual background
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.
Held
- Appeal dismissed; cross-appeal allowed. The 10% uplift in Simmons v Castle had no application to Employment Tribunal awards.
- 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.
- 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.
- 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.
- 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.
- The Tribunal’s refusal to make an uplift for breach of the ACAS Code was a permissible exercise of discretion on the facts.
The court’s approach to earlier authorities
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Appellate history
- 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.
Appeal route
- This judgment [2015] ICR 1034 Employment Appeal Tribunal
- Appealed to[2017] EWCA Civ 879Outcomeappeal allowed; compensation varied and the section 207a uplift issue remitted
Key cases cited
13 authorities cited.
- Simmons v Castle & Ors [2012] EWCA Civ 1288
- Vento v Chief Constable of West Yorkshire Police (Chief Constable of West Yorkshire Police v Vento) [2002] EWCA Civ 1871
- Heil v Rankin (Annable v Southern Derbyshire Health Authority, Connolly v Tasker, Kent v Griffiths (No 2), Ramsay v Rivers, Rees v Mabco (102) Ltd (In Liquidation), Schofield v Saunders & Taylor Ltd, Warren v Northern General Hospital NHS Trust) [2001] QB 272
- Da’Bell v NSPCC [2010] IRLR 19
- Bullimore v Pothecary Witham Weld [2010] UKEAT 0189/10
- Chawla v Hewlett Packard Ltd [2015] CN 414
- In re Taylor (A Bankrupt) [2007] Ch 150
- Prison Service v Johnson (Armitage v Johnson) [1997] ICR 275
- Secretary of State for Trade and Industry v Cook [1997] IRLR 150
- Colchester Estates (Cardiff) v Carlton Industries Plc [1986] Ch 80
- Wright v British Railways Board [1983] 2 AC 773
- Cadogan Hotels v Ozog
- Sash Window Workshop v King
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Cases citing this case
1 later case · 1 neutral
Most senior citing decisions:
- AA Solicitors Ltd (t/a AA Solicitors) & Anor v Majid (Sex Discrimination: Injury to feelings) [2016] UKEAT 0217_15_2306 considered
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