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Ten Percent Uplift for Injury to Feelings Compensation in Employment Tribunal

on Friday, 18 December 2015.

The Employment Appeal Tribunal (EAT) has provided a useful insight into the Employment Tribunal's (ET) developing approach to calculating compensation for injury to feelings.

In Beckford v London Borough of Southwark, Mr Beckford was dismissed for capability reasons and brought various successful claims. His injury to feelings award was increased by 10% in line with the previous Court of Appeal (CA) decision of Simmons v Castle, which held that certain categories of civil claims would be subject to a 10% uplift in order to help claimants meet costs in civil litigation.

Mr Beckford's former employer, London Borough of Southward (LBS) appealed this decision on the basis that in the ET, each party generally bears its own costs, as opposed to the civil litigation system where there is a general practice of costs recovery. LBS argued that as costs recovery is different in the ET, the Simmons uplift should not apply to ET decisions.

In reaching its decision the EAT considered the statutory position, which effectively says that ET awards should be comparable to county court awards. This does not mean that county court compensation should be consistently 10% higher than ET compensation. If Simmons were to be inapplicable to the ET, this would create an incentive for litigants to pursue county court rather than ET claims. In addition, as ET litigants generally bear their own costs in any event, it would not be correct to say that they are in a favourable position compared to their county court counterparts, and that they therefore do not need the 10% uplift. Taking all of this into account, the EAT held that the Simmons uplift should apply to ET cases.

Best Practice

The Court of Appeal is due to hear an appeal on this same point early next year and so whilst the EAT's decision is persuasive, the judicial approach to Simmons is yet to be definitively confirmed. Until it is, employers may continue to argue against the inclusion of the Simmons uplift in schedules of loss. We will update you next year on the CA's conclusions, and implications for the conduct of litigation.


For more information, please contact Jessica Scott-Dye in our Employment Law team on 0117 314 5652.