Veale Wasborough Vizards
17 JUL 2017
Case Gives Clarity in Discrimination Awards at Employment Tribunal
Associate, Veale Wasbrough Vizards
The Court of Appeal was asked to consider the parity of compensation between Employment Tribunal (ET) and civil court claims in the recent case of De Souza v Vinci Construction (UK) Ltd.
This case provides useful clarification, following a previously inconsistent line of case law, that claims of the same seriousness whether brought in the tribunal or the civil courts, should attract the same level of financial award.
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FactsThe Appellant brought a number of claims in the ET (including harassment and victimisation) against the Respondent for disability discrimination under the Equality Act 2010.
In November 2013, the ET awarded the Appellant £9,000 for injury to feelings and £3,300 for psychiatric injury arising out of the discrimination. The psychiatric injury award incorporated an uplift of 10%, which reflected the uplift for similar awards made in the civil courts since 2013 following the case of Simmons v Castle. No uplift was applied to the award of compensation for injury to feelings.
The Appellant appealed against the ET's decision not to apply the uplift to the injury to feelings award. The Respondent cross-appealed against the decision to apply the uplift to the psychiatric injury award.
The Employment Appeal Tribunal (EAT) dismissed the Appellant's appeal and allowed the Respondent's appeal, holding that the uplift should only be applied to claims in the civil courts. The Appellant then appealed to the Court of Appeal (CA).
DecisionThe CA unanimously upheld the Appellant's appeal. It held that an injury of the same level of seriousness should attract the same award, regardless of whether the claim is brought in the tribunal or the civil courts. This corresponds with the intention behind the discrimination legislation. The CA also concluded that an award for both psychiatric injury and injury to feelings should qualify for the uplift.
It has been suggested that the President of the Employment Tribunals in England and Wales and/or the President of the EAT may issue further guidance on the calculation of awards for injury to feelings and psychiatric damage.