Transfer of Undertakings

Our second case this week is from the Court of Appeal and concerns discrimination. In any discrimination case the Tribunal can award damages to the Claimant for injury to feeling. Unlike compensatory awards, awards for injury to feeling are not capped and thus discrimination claims offer the greatest financial risk to employers.

The question in this case is, does the uplift of Tribunal Awards apply to awards for injury to feeling?

Ms De Souza, the Claimant, bought several disability discriminations claims against Vinci Construction, the Respondent, including claims for harassment and victimisation. Many of the acts of discrimination related to the Claimant’s employment before it TUPE transferred over to the Respondent.

The ET awarded the Claimant £12,000 which was made up of £9,000 for injury to feeling and £3,000 for psychiatric injury. The ET allowed a 10% uplift to the psychiatric injury award as such an uplift would be available in Civil Court. However, no such uplift was made to the injury for feeling award, nor was an uplift made for failure to follow the ACAS Code of Practise.

The Claimant appealed and the EAT rejected the appeal. It also allowed a cross-appeal by the Respondent against the decision to apply the uplift to the award for psychiatric injury. The Claimant appealed and CoA allowed the appeal. They held that the 10% uplift applies to both injury to feeling and psychiatric injury.

The takeaway point:

Yes, 10% uplifts can apply to injury to feeling awards. This further heightens the risk they pose to employers as an uncapped award of several hundred thousand pounds can now be uplifted by 10%!