De Souza v Vinci Construction Uk Ltd (Disability Discrimination : Compensation) [2015] UKEAT 0328_14_2003

EAT
De Souza v Vinci Construction Uk Ltd (Disability Discrimination : Compensation)
[2015] UKEAT 0328_14_2003 · 2015-03-20
[31]“ On the face of it, at any rate, it is hard to challenge that contention: such claimants would have the penny and the bun .” As a result of the reforms contained in the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“LASPO”) 1 April 2013 was the cut-off date for the right of Claimants to recoup, as part of their costs, success fees and ATE insurance premiums. It is significant that the Court of Appeal had made clear that the 10% uplift was intended to be a quid pro quo for the loss of those rights. The Court of Appeal referred to Sir Rupert’s report and recommended that the 10% uplift be implemented in order to assist personal injury claimants in meeting the success fees out of damages. The Court of Appeal also referred to various observations of Sir Rupert Jackson, that he:[25]“… was persuaded to recommend that the uplift] be given to personal injury claimants as a quid pro quo for losing recoverability of success fees and ATE premiums”. The Court of Appeal continued:[27]“ In our view, it is clear from these observations that both Sir Rupert and the MoJ envisaged and intended the primary purpose of the 10% increase in damages would be to compensate successful claimants, as a class, for being deprived of the right which they had enjoyed since 2000 to recover success fees from defendants, in cases where a claimant was funding the legal costs of pursuing his or her claim by a CFA. ”37. I have already referred to the Court of Appeal reminding itself that one of its functions was to set guidelines for the appropriate level of damages in different cases. General uplifts were unusual, but the Court of Appeal also reminded itself that a general uplift in damages might be appropriate and that guidelines should be altered if circumstances relevant to the particular guideline changed. The Court of Appeal specifically quoted Lord Woolf in Heil v Rankin at page 86: “Our starting point is that it would only be appropriate to interfere with the existing levels of award if we were satisfied that there was a clear need established for this to be done.” (my underlining)38. It is now necessary to refer to the two decisions of the Employment Appeal Tribunal in which the Simmons v Castle uplift has been applied to Employment Tribunal awards in discrimination cases. The first in point of time is Cadogan Hotels v Ozog . This is a decision of HHJ Eady QC (UKEAT/0001/14). The Employment Appeal Tribunal was considering an award for compensation for injury to feelings. It is clear from the report that the Respondent accepted that there should be a 10% uplift on the Vento guidelines following Simmons v Castle . HHJ Eady QC said:[33]“For those cases in which an injury to feelings award was made after 1 April 2013, it is also right to note that there is a requirement to apply the 10% uplift laid down in Simmons v Castle [2012] EWCA Civ 1039 . Here that should have been done by the Employment Tribunal and, although there is no cross-appeal to that effect, it is common ground that this would necessarily fall to be done by this EAT if making an award for general damages in substitution for the award by the Tribunal.” 39. I would make the following observations about this case: (i) the applicability of the 10% uplift was conceded; (ii) there was no argument addressed to HHJ Eady QC as there had been before me that the uplift was not intended to awards in the Employment Tribunal; (iii) Judge Eady gave no reasons for her decision. 40. The second authority is that of Simler J in the Sash Windows Workshop v King (UKEAT/0057 and 0058/14). In this case the Claimant appealed against the decision of the Employment Appeal Tribunal in relation to an award for compensation for injuries to feelings and a discrimination claim. The Claimant sought the benefit of the Simmons v Castle uplift, which was opposed by the Respondent, but not on the ground that the uplift was a quid pro quo to which litigants in the Employment Tribunal were not entitled but on the basis recorded by Simler J:
“… Mr Rees contends that injury to feelings awards in Employment Tribunals can be distinguished from awards for torts in other jurisdictions because of the decision in Da’Bell uprating the Vento bands in line with inflation and significantly in excess of 10%. He submits that these guidelines are unique to the Tribunal jurisdiction and that accordingly the Simmons v Castle uplift is already accounted for. Moreover he submits that the justification for the 10% uplift included the fact that the level of general damages was generally low (see Simmons v Castle at 27 and 37) and that this is not the case for Tribunal awards. Finally he submits that the Court of Appeal did not have Employment Tribunals in mind in Simmons v Castle .” 41. Simler J went on to hold that the Employment Tribunal had erred by failing to apply a 10% uplift to the award by reference to the uprated Vento guidelines. She gave no reasons beyond accepting the Claimant’s submissions that discrimination is a statutory tort and, by reference to section 124 of the Equality Act 2010 , the amount of compensation that may be awarded for the statutory tort corresponds expressly by virtue of section 124(6) to the amount which could be awarded by a county court. 42. Simler J said that there was some support for the proposition that the 10% uplift applied to awards made in the Employment Tribunal by reference to the decision in Ozog which I have just referred to. She noted that the point had been conceded in the Employment Appeal Tribunal, but HHJ Eady QC had stated that the concession was rightly made. 43. I would make the following observations about the Sash Windows case. Although it was submitted to Simler J that the Court of Appeal did not have Employment Tribunals in mind in Simmons v Castle and, as she referred in her Judgement to Simmons v Castle , she will have had in her mind the explanations given by the Court of Appeal for the 10% uplift and the Court of Appeal’s reluctance to give Claimants who did not give up a right to recover success fees from ATE premiums insurance premiums both “the penny and the bun”, but she makes no reference to the point in her Judgment. Simler J does not appear to have been asked to consider the point raised in this appeal and, as I have just said, she did not refer to it in her Judgment and was not specifically referred to the report of Sir Rupert Jackson to which I was referred in some detail and to which I shall return shortly. 44. I need to refer to the jurisdiction of the Employment Tribunal to award compensation in respect of injury to feelings to be found in the Equality Act 2010 at sections 119 and 124. “ 119. Remedies (2) The county court has power to grant any remedy which could be granted by the High Court - (a) in proceedings in tort; … 124. Remedies: general (2) The tribunal may- … (b) order the respondent to pay compensation to the complainant; … (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by a county court or the sheriff under section 119.” 45. I note that guidelines for the award of compensation for injury to feelings in discrimination cases was set out by the Court of Appeal in Vento v Chief Constable West Yorkshire Police (No 2) [2003] IRLR 102 and brought up to date to allow for inflation in Da’Bell v NSPCC [2009] IRLR 19 (EAT HHJ McMullen QC). I would refer also to Bullimore v Pothecary Witham Weld [2011] IRLR 18 , a decision of the Employment Appeal Tribunal presided over by its then President, Underhill J. Underhill J considered the updating of awards for compensation for injury to feelings and guidelines such as those given in Vento : “31. As a matter of principle, employment tribunals ought to assess the quantum of compensation for non-pecuniary loss in ‘today's money’; and it follows that an award in 2009 should - on the basis that there has been significant inflation in the meantime – be higher than it would have been had the case been decided in 2002. But this point of principle does not require tribunals explicitly to perform an uprating exercise when referring to previous decided cases or to guidelines such as those enunciated in Vento . The assessment of compensation for non-pecuniary loss is simply too subjective (which is not a dirty word in this context) and too imprecise for any such exercise to be worthwhile. Guideline cases do no more than give guidance, and any figures or brackets recommended are necessarily soft-edged. ‘Uprating’ such as occurred in Da'Bell is a valuable reminder to tribunals to take inflation into account when considering awards in previous cases; but it does not mean that any recent previous decision referring to such a case which has not itself expressly included an uprating was wrong.”
I derive from this that there is no need for there to be a specific uplift across the board in awards for inflation in Employment Tribunals because the Employment Tribunals are themselves responsible for uplifting awards to take account of inflation where appropriate to do so. Conclusion s 46. I am persuaded by the argument that the Court of Appeal cannot have intended the declaration of the 10% uplift in Simmons v Castle to apply to claims in the Employment Tribunal in respect of the statutory tort of discrimination. 47. There is no reference at all in any of the documentation relating to the reform package which was the subject of Sir Rupert Jackson’s reports and subsequent statements or any consultation documents or in the Judgment in Simmons v Castle as to the applicability of the 10% uplift to awards in the Employment Tribunal. As I have already observed it would be highly unlikely if it was intended to apply the principle outside awards of damages in the civil courts and in particular to providing an uplift to the Vento guidelines. 48. Had the Court of Appeal intended to extend the uplift to proceedings in Employment Tribunals, in my opinion it would have said so clearly. 49. It is also evident from the fact that the Court of Appeal revised the terms of its decision after its first Judgment to as far as possible exclude a class of litigants from the benefit of the 10% uplift, which had retained its right to recoup ATE insurance premiums and success fees, because of the date when their proceedings were commenced. 50. I accept that the rationale of the Jackson reforms was to review and amend the law relating to costs in civil proceedings and that as part of that package the rights conferred on successful litigants to recover as part of their costs fees incurred in respect of ATE insurance premiums and success fees were abrogated. 51. It is clear to me from reading the Judgment in Simmons v Castle and the other documents to which I have referred that the 10% uplift in damages was to compensate those Claimants who had lost those rights and now had to bear the costs themselves. Sir Rupert Jackson was reporting in relation to “civil proceedings”. Proceedings in Tribunals are not properly classified as “civil proceedings”, and litigants in Employment Tribunals have never had any right to recover ATE insurance premiums nor success fees. So far as I am aware the provision of ATE insurance has never been a requirement in litigation in the Employment Tribunal (although it may have been available) and has never been regarded as an element of costs; similarly with success fees. 52. It is also of significance that nowhere in Simmons v Castle nor in the Jackson report is there any mention of awards in Employment Tribunals or the Vento guidelines. It is not that Sir Rupert Jackson did not have Tribunals in mind because he made clear that:
“ any proposed reform of Tribunals falls outside my terms of reference ” (my underlining; see footnote 33) The Court of Appeal had no mandate to vary the tariff of awards in Employment Tribunals as set out in Vento from Parliament or the government. 53. Sir Rupert did consider the availability of contingency fees in Tribunals and matters such as costs shifting, and I refer to his report. He specifically drew attention to the distinction between the culture in the courts and Tribunals in relation to costs shifting: “The culture of the courts is that costs shifting promotes access to justice; therefore costs shifting is the norm or the default rule in most forms of litigation. The culture of tribunals is that costs shifting inhibits access to justice; therefore no costs shifting is the norm or the default rule in most tribunal proceedings.” 54. It cannot be said that there are circumstances relevant to the Vento guidelines that have changed nor that a clear need for change has been established. As made clear in Bullimore the effect of inflation is always a matter for consideration by Employment Tribunals in individual cases. 55. I am unable to accept that by virtue of section 129(2)(b) and section 124(6) of the Equality Act that Employment Tribunals are required to award precisely the same compensation as a county court. As Mr Cordrey pointed out to me, in Vento the Court of Appeal had approved a dictum of Smith J in HM Prison Service v Johnson [1997] ICR 275: “Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. The most difficult point that I have had to consider is whether or not I should depart from the decision of Simler J in Sash Window Workshop . I repeat what Morison J had said in Secretary of State for Trade and Industry v Cook . The Employment Appeal Tribunal is not bound by its previous decisions although they will only be departed from in exceptional circumstances or where there are previous inconsistent decisions. 56. It may possibly be that Morison J set the bar rather high, because it is generally considered that decisions of Judges of co-ordinate jurisdiction are persuasive rather than binding and the Judge will make his decision on the merits of the case, save in cases where there are two inconsistent decisions and the earlier case has been considered and not followed in the second; see note 12-54 in the current edition of the White Book (2014) and the decision in Colchester Estates (Cardiff) v Carlton Industries Plc [1984] 3 WLR 693. I also draw attention to the reference in In Re Taylor (A Bankrupt) [2007] 2 WLR 148 of HHJ Kershaw QC, who preferred the view that: “As decisions of coordinate courts are persuasive and not binding, the Judge should make his decision on the merits of the submissions, giving appropriate weight but no more to the conflicting authorities …”
Regardless of whether or not Morison J may have set the bar too high, I consider that there are exceptional circumstances that justify my declining to follow the decision of Simler J. I consider that Sash Window Workshops should not be followed for the reasons I have given. I also bear in mind that the Employment Appeal Tribunal has a responsibility to give guidance to Employment Tribunals and awards of compensation for injury to feelings must be an almost everyday occurrence. The point is of general application and clearly of importance in Employment Tribunals up and down the country (including in Scotland). I regard it as important in order to minimise the number of other appeals and to ensure consistency that this guidance should be given even though I recognise that the point will have to be decided in due course by the Court of Appeal and I have already given permission to both parties to appeal to the Court of Appeal. 57. For those reasons the appeal is dismissed and the cross-appeal is allowed. My decision is, therefore, that the 10% uplift provided in Simmons v Castle has no application in the Employment Tribunal and that the decision in Sash Window Workshop should no longer be followed. I am fortified in my conclusion by the judgment of Slade J in Chawla v Hewlett Packard Ltd [1] UKEAT/0280/13 and UKEAT/0427/13 in which she has reached a similar conclusion as to the effect of Simmons v Castle . [1] Slade J does say that she preferred my decision in De Souza to the decision in Sash Windows Workshop . At the time Slade J handed down her judgment in Chawla I had not handed down my judgment, but Slade J had been supplied with a draft to which she was referring.