It has long been accepted that the Vento guidelines, which were later updated in Da’Bell, should be used in assessing the level of injury to feelings awards in relation to discrimination cases brought in the Employment Tribunal. However in the case of Simmons v Castle, the Court of Appeal held that the level of general damages in certain types of claims should be increased by 10% after 1 April 2013. So does this principle apply to injury to feelings awards made by the Employment Tribunal?
The answer is that we have to wait and see.
In the recent case of Chawla v HP, the EAT Judge said that the 10% uplift did not apply. While the Judge accepted that awards should reflect today’s money, there should be no automatic 10% uplift. She maintained that the increase referred to in Simmons v Castle was brought about to reflect that claimants would no longer be able to recover success fees and After the Event Insurance premiums from respondents in the Courts. However as there is a “no costs” regime in the Employment Tribunal unlike the other Courts, the 10% uplift is not relevant and should not apply.
We now have two Employment Appeal Tribunal cases which maintain the 10% uplift should apply and two that maintain it should not. Leave to appeal to the Court of Appeal has been granted in one of these cases so it should not be too long before we have a definitive answer. Watch this space…