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EAT considers compensation in discrimination cases

In the case of Chawla v Hewlett Packard reported last week, the EAT considered (amongst other things) whether there should be an uplift in an award for injury to feelings following the Court of Appeal decision in Simmons v Castle.

By way of brief background, to address the impact of the Jackson reforms in the Civil Courts (and in particular the changes to the costs regime), the Court of Appeal in Simmons v Castle held that there should be a 10% uplift applied to general damages awarded. 

In the present case, the EAT considered the reasons for applying the uplift and whether those were applicable in the employment tribunal.  It concluded that as there is no costs regime in employment tribunals or the EAT, the rationale for the uplift does not apply to litigation in the tribunal.  Accordingly the EAT concluded in this case that the 10% uplift does not apply to increase the guidelines in cases on injury to feelings in discrimination cases heard in the employment tribunal (ie the 'Vento' guidelines').  Instead the principle to be applied when making such awards in the tribunal should be to "assess the quantum for non-pecuniary loss in 'today's money'". 

This decision is contrary to two previous EAT decisions which held that the uplift should be applied.  Interestingly, the Presidential Guidance on general case management in the employment tribunal (see Rebecca Heyworth's post here), does take account of the 10% uplift when stating the 'bands' that apply to injury to feelings awards and so it remains to be seen how this precedent will be developed and followed.

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