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10% increase in non-pecuniary damages for injury to feelings awards in discrimination cases?

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In July 2012 in Simmons v Castle, the Court of Appeal ruled that a 10% increase in non-pecuniary damages should apply to personal injury and similar cases in the civil courts.

There has been much debate among competing authorities as to whether this uplift should apply to injury to feelings in a discrimination case but this was put to bed as the Court of Appeal agrees that it should apply in De Souza v Vinci Construction (UK) Ltd.

In this particular case the claimant, a cleaner, succeeded in a claim of disability discrimination against her employer. She was awarded £9000 for injury to feelings and £3000 for psychiatric injury by the employment tribunal. After being asked to consider the application of the Simmons v Castle uplift to both awards the tribunal decided that it only applied to the psychiatric award and increased this to £3300.

Both parties appealed to this decision and the EAT found that the uplift applied to neither the psychiatric injury nor the injury to feelings award. The Claimant then appealed to the Court of Appeal which overturned the decision of the EAT and found that as s124(6) Equality Act 2010 required that discrimination awards correspond with that which could be awarded by the county court, then Simmons v Castle uplifts should actually be applied to both awards – injury to feelings and psychiatric injury.

Written by

Edward Aston
1oth July 2017