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Uplifts: where to next?

Following Pereira de Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, it is clear that the Simmons v Castle uplift of 10% should be applied to awards of compensation for injury to feelings in discrimination claims in the employment tribunal. In this blog we consider whether the Simmons v Castle uplift should be applied to injury to feelings awards in whistleblowing claims.

A sensible place to start is the relevant statutory provisions. In discrimination claims in the employment tribunal:

“The amount of compensation which may be awarded … corresponds to the amount which could be awarded by the county court … under section 119.” (Section 124(6), Equality Act 2010.)

The County Court has the power to grant any remedy which could be granted by the High Court in proceedings in tort or on a claim for judicial review. An award of damages may include an award for injury to feelings. (Section 119, Equality Act 2010.)

In de Souza, the Court of Appeal construed the language of the statute to mean that the amount awarded in the employment tribunal in respect of a particular head of loss should be the same as if an award in respect of the identical loss had fallen to be made in the County Court. The policy considerations that underlie that requirement were identified as being that it would be unacceptable for an injury of the same level of seriousness to attract a different award depending on the Part of the Act under which liability arises.

Simmons v Castle was the vehicle which implemented Sir Rupert Jackson’s recommendations that there be an increase in non-pecuniary general damages in tort cases for all claimants as a quid pro quo for the changes to the rules governing the recovery of costs in personal injury litigation. The Court of Appeal in de Souza rejected the argument that it would be anomalous for claimants in the employment tribunal to get the benefit of an uplift designed to compensate for a reduction in net recovery which they have not suffered. This was on the basis that such an anomaly could not justify qualifying the plain words of the statute, or ignoring the important underlying policy considerations.

Whistleblowing claims

In contrast to discrimination claims, there is no provision in the Employment Rights Act 1996 requiring that the level of awards in the employment tribunal in a whistleblowing complaint should correspond to those in the County Court. Section 49(2) of the Employment Rights Act 1996, which applies to detriments including for whistleblowing, merely provides that the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to both of the following:

  • The infringement to which the complaint relates.
  • Any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.

Nevertheless, it is likely that the Simmons v Castle uplift will be applied to whistleblowing claims, albeit through a different route. In Virgo Fidelis Senior School v Boyle [2004] IRLR 268, the EAT concluded that the Vento guidelines should apply equally to whistleblowing detriment claims. This was on the basis that whistleblowing is considered to be a form of discrimination and so should attract a similar level of award as discrimination claims. The approach of the EAT in Virgo Fidelis reflects the policy considerations, which underlie section 124(6) of the Equality Act 2010. To borrow the words of Langstaff J in Beckford v London Borough of Southwark UKEAT/0210/14, relied upon by the Court of Appeal in de Souza, it would be incoherent and contrary to judicial policy that essentially the same injury should be differently compensated in different courts and tribunals. It is likely that the courts will remain reluctant to allow awards for injury to feelings caused by a whistleblowing detriment to fall behind compensation awarded to victims of other types of discrimination. Whistleblowing awards will also need to be subjected to an uplift to keep up with other types of discrimination.

Devereux Talia Barsam

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