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Discrimination claims – increased awards for injury to feelings

ISSUE:

The Court of Appeal (‘CA’) in De Souza v Vinci Construction (UK) Limited [2017] has held that a 10% uplift applies to discrimination awards in the employment tribunal.

Discrimination awards cover non-financial loss, such as psychiatric injury and injury to feelings, as well as financial loss. The leading case of Vento v Chief Constable of West Yorkshire Police (No 2) [2002] set out three bands of potential awards to be given for injury to feelings. The bands were updated in 2009 to the following:

  • Lower band: £600 to £6,000
  • Middle band: £6,000 to £18,000
  • Higher band: £18,000 to £30,000

In July 2012 the CA ruled in Simmons v Castle that a 10% increase to non-pecuniary awards should apply to personal injury cases in the civil courts. Although the Simmons judgment is not applicable to employment tribunals, section 124(6) Equality Act 2010 requires discrimination awards to correspond with what could be awarded by the county court.

In De Souza, Ms Pereira de Souza succeeded in a claim of disability discrimination against her employer. The Employment Appeal Tribunal found that the Simmons uplift did not apply to either of her awards for psychiatric injury or injury to feelings.

Ms Pereira de Souza appealed to the CA.

The CA upheld the appeal and relied on section 124(6); a 10% uplift should be applied to both injury to feelings and psychiatric injury awards caused by discrimination.

KEY DATES:

The appeal was heard on 23 May 2017 and the judgment handed down on 4 July 2017.

IMPACT:

The effect of the judgment is a definitive ruling that employees will now have the right to increased damages for psychiatric injury and injury to feelings in discrimination claims.

ACTION:

This case comes as a reminder of the extent of damages awarded in discrimination claims. Employers should be aware of this judgment and should seek legal advice when a potential discrimination issue arises.

This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: mailinglists@greenwoods.co.uk




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