De Souza v Vinci Construction (UK) Ltd

The Court of Appeal held that the 10% Simmons v Castle uplift to general damages for non-pecuniary loss applies equally to awards made by employment tribunals for both injury to feelings and psychiatric injury, because section 124(6) of the Equality Act 2010 requires tribunal awards to "correspond" to County Court awards. The court therefore increased the tribunal's award for injury to feelings from £9,000 to £9,900 and restored the tribunal's £3,300 award for psychiatric injury which had already incorporated the uplift. The court also held that the tribunal had been inconsistent in refusing any uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 where the respondent had conceded unreasonable delay in grievance handling; that issue was remitted to the employment tribunal for reconsideration.

Background and facts. The appellant was employed as a cleaner and her employment transferred to Vinci under TUPE. She brought multiple discrimination claims under the Equality Act 2010 arising from conduct of her previous employer Rentokil and its continuation by Vinci. At a case management hearing Vinci conceded liability for the first three sets of claims and a remedy hearing followed. The tribunal awarded a total of £12,000 (injury to feelings £9,000; psychiatric injury £3,300). The tribunal applied the Simmons v Castle 10% uplift to the psychiatric injury award but not to the injury to feelings award, and declined any uplift under section 207A (ACAS Code) of TULRCA 1992.

Procedural history. The appellant appealed to the Employment Appeal Tribunal (EAT) which dismissed her appeal and allowed the respondent's cross-appeal ([2015] ICR 1034). The appellant then appealed to the Court of Appeal.

Nature of relief sought. The appellant sought correction of the tribunal's approach to the Simmons v Castle uplift and a section 207A uplift for breach of the ACAS Code in relation to grievance handling.

Issues before the Court of Appeal. (i) Whether the 10% Simmons v Castle uplift applies to employment tribunal awards for injury to feelings and psychiatric injury, having regard to section 124(6) Equality Act 2010; (ii) whether the tribunal was entitled to refuse any uplift under section 207A TULRCA 1992 where Vinci had conceded unreasonable delay and other grievances.

Reasoning and conclusions. On the Simmons point the court gave a purposive construction to section 124(6), concluding that awards in the employment tribunal must correspond to County Court awards, and that it would be incoherent for equivalent injuries to attract systematically different awards across forums. The costs-based rationale for the Simmons uplift in the civil courts did not justify departing from the statutory requirement of correspondence. The court therefore applied the uplift to both heads: it restored the £3,300 psychiatric award (already uplifted) and increased the injury to feelings award to £9,900. On section 207A the court held that Vinci's concessions as to unreasonable delay obliged the tribunal to find non-compliance with the ACAS Code in relation to delay; the tribunal's express finding that there was no breach was inconsistent with that concession. The court remitted the limited issue of whether and what uplift under section 207A should be awarded to the employment tribunal for reconsideration, noting the sums at stake and urging proportional handling.

The appeal was allowed in part. The Court of Appeal held that the Simmons v Castle 10% uplift applies to employment tribunal awards for both injury to feelings and psychiatric injury because section 124(6) Equality Act 2010 requires tribunal awards to correspond to County Court awards; accordingly the injury to feelings award was increased from £9,000 to £9,900 and the psychiatric award of £3,300 was restored. The court also held that the tribunal erred in refusing any uplift under section 207A TULRCA 1992 where the respondent had conceded unreasonable delays amounting to breaches of the ACAS Code; that issue was remitted to the employment tribunal for determination.

Appeal from the Employment Appeal Tribunal (HHJ Serota QC) which handed down judgment reported at [2015] ICR 1034, which itself was an appeal from the Employment Tribunal's remedy decision dated 26 November 2013. The case then proceeded to the Court of Appeal (this judgment [2017] EWCA Civ 879).