De Souza v Vinci Construction (UK) Ltd

Compensation awarded by an employment tribunal under the Equality Act 2010 must correspond to the amount which the County Court could award for the same loss. The 10% increase established for specified kinds of non-pecuniary loss therefore applies to tribunal awards for both psychiatric injury and injury to feelings.

An employer’s admission of unreasonable delay in handling a grievance establishes non-compliance with an ACAS Code expressly requiring action without unreasonable delay. The tribunal may assess the seriousness of the admitted breach when deciding whether a statutory uplift is just and equitable, and at what level, but it cannot make a finding inconsistent with the admission.

The appellant brought disability discrimination, harassment, victimisation and pay claims arising from her employment as a cleaner. The respondent accepted liability for all extant claims in the first three sets of proceedings. The Employment Tribunal awarded £9,000 for injury to feelings and £3,300 for psychiatric injury. It included the 10% Simmons v Castle uplift only in the psychiatric injury award and declined an uplift for breach of the applicable ACAS Code.

The Employment Appeal Tribunal, in a decision reported at [2015] ICR 1034, dismissed the appellant’s challenges and allowed the respondent’s cross-appeal against the psychiatric injury uplift. The issues before the Court of Appeal were whether the 10% uplift applied to either form of non-pecuniary loss and whether the tribunal’s finding of no breach of the ACAS Code was compatible with the respondent’s admissions.

1. The appeal was allowed on both issues. Section 124(6) of the Equality Act 2010 requires compensation for a particular head of loss in an employment tribunal to be the same as compensation for identical loss in the County Court. Discrimination and its resulting injury do not change in character according to whether jurisdiction lies with the tribunal or the County Court. A consistent 10% disparity would contravene the statutory requirement that the awards correspond.

2. The historical costs rationale for the uplift declared in Simmons v Castle did not justify qualifying section 124(6). That uplift applied universally in the civil courts, including to claimants who had not lost any right to recover a success fee or insurance premium. Differences between the costs regimes of the courts and tribunals were therefore left out of the statutory comparison.

3. The uplift applied both to psychiatric injury and to injury to feelings. Injury to feelings fell within the category of mental distress identified in Simmons v Castle. The award for psychiatric injury was restored at £3,300, and the injury-to-feelings award was increased from £9,000 to £9,900. Pending updated guidance, tribunals could adjust the Vento bands for inflation and the uplift without mathematical precision.

4. The respondent had expressly admitted allegations of unreasonable delay in dealing with grievances. Since the ACAS Code required the relevant stages to occur without unreasonable delay, the tribunal was obliged to find non-compliance. It remained entitled to investigate the seriousness of the admitted breaches and, under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, to award a low uplift or no uplift. It could not, however, conclude that no breach had occurred and thereby fail to exercise the statutory discretion.

5. The section 207A issue was remitted, preferably to the same tribunal, to decide whether an uplift was just and equitable and, if so, its amount. The remitted tribunal could also consider whether other admitted aspects of the grievance handling breached the Code. Procedural mishandling or wrongful rejection alone did not establish a breach, although absence of good faith might do so.

1. Court of Appeal (Civil Division): Allowed the appeal, restored the £3,300 psychiatric injury award, increased the injury-to-feelings award to £9,900, and remitted the section 207A uplift issue to the Employment Tribunal.
2. Employment Appeal Tribunal: In the decision reported at [2015] ICR 1034, dismissed the employee’s appeal concerning both proposed uplifts and allowed the employer’s cross-appeal against the psychiatric injury uplift.
3. Employment Tribunal: Awarded £9,000 for injury to feelings and £3,300 for psychiatric injury, but declined an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.