January 4, 2016

Injury to feelings uplift applies in Employment Tribunal

The EAT held that a claim for damages for discrimination was a statutory tort which fell within the category of general damages to which the Court of Appeal in Simmons had stated the uplift would apply. The EAT dismissed the argument that the uplift should be looked at purely as a quid pro quo for the removal of the recoverability of success fees and after the event insurance premiums, neither of which could be claimed in the Employment Tribunal. On the contrary, the EAT held that, in the light of the lack of funding available both for Civil Court claims and Employment Tribunal claims, there was no difference in their financial status as litigants and there was therefore no ground for distinguishing between the amount of damages which they were entitled to recover.

So there is still an unresolved conflict in the lines of authority at EAT level on the application of the uplift to injury to feeling awards. However the Court of Appeal is expected to deal with the appeals in the Sash Window Workshop Limited and another v King (scheduled for February 2016) and Pereira de Souza v Vinci Construction UK Limited (which should have been heard on the 7th December 2016 but the result of which has not yet been announced) which hopefully will resolve the matter once and for all.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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