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Employment Law

Legal guidance - compliance - software

09 MAR 2015

Should the 10% damages uplift apply to tribunal injury to feelings awards?

Should the 10% damages uplift apply to tribunal injury to feelings awards?
Joanne Oliver

Associate, Veale Wasbrough Vizards

A recent decision by the Employment Appeal Tribunal (EAT) casts doubt on whether the 10% uplift on general damages in civil claims, established by the Court of Appeal (CoA) in Simmons v Castle, should apply to injury to feelings awards in employment tribunals.

In Chawla v Hewlett Packard Limited, Mr Chawla was on long-term sick leave from his employment at Hewlett Packard. He brought various claims of disability discrimination, including a claim that Hewlett Packard had failed to make reasonable adjustments to provide him with timely information about the exercise of his share options. The Employment Tribunal (ET) partly upheld his claim and made an award of £5,000 for injury to feelings in respect of this failure and an award of £5,000 for personal injury.

Mr Chawla appealed to the EAT. Amongst other things, he argued that the injury to feelings award was too low. He asserted that he should have received a middle band Vento award (ie between £6,000 to £18,000) and that the 10% damages uplift should have also been applied as in the earlier CoA decision in Simmons v Castle.

The CoA established in Simmons that the level of general damages in civil claims for mental distress would be increased by 10% from 1 April 2013.
The EAT rejected both grounds of appeal and held that:

  • the injury to feelings award was correct and consistent with the Vento guidelines
  • there was no requirement for the tribunal to have identified which Vento band the award fell into, and
  • the 10% uplift did not apply in the ET
The 10% uplift applied in Simmons v Castle was only intended to apply to litigation affected by the Jackson review of civil litigation costs. As there is no costs regime in the ET and each party generally bears its own costs, the rationale in Simmons v Castle was not applicable and there was no reason for the 10% uplift to apply in this case.

The EAT in this case acknowledged that its decision not to award the 10% uplift contradicted two earlier EAT decisions, which held that the uplift should be applied to all injury to feelings awards made after 1 April 2013. The EAT in this case preferred the unreported decision in Pereira de Souza v Vinci Construction UK Ltd which also held that the uplift did not apply in the ET.

Best practice

This decision gives respondents in on-going ET claims grounds to challenge the level of compensation if a claimant seeks a 10% uplift on an award for injury to feelings. It indicates a pause in cases increasing injury to feelings compensation awarded by the ET.

This case also serves as a reminder of the obligation to make reasonable adjustments in respect of employees with a disability. It is important to ensure that disabled employees on long term sick leave continue to have access to information about benefits affecting them whilst absent from work.
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