The Simmons v Castle debate continues


Sarah Fraser Butlin considers the most recent EAT judgment on the issue in Olayemi v Athena Medical Centre.

It was HHJ Richardson’s turn to consider whether the 10% uplift on general damages applied to awards for injury to feelings.  His answer was yes.

The Court of Appeal in Simmons v Castle [2012] EWCA Civ 1039 had declared that:

“…with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, or (v) mental distress, will be 10% higher than previously…”

This arose out of the Jackson reforms in personal injury litigation, including the removal of success fees under CFAs.  A subsidiary reason for the uplift was that the awards generally for general damages were considered to be too low and needed to reflect modern day value.

The question for employment lawyers has been whether the 10% uplift also applies to general damages in discrimination claims in the employment tribunal.  

There have now been at least six EAT decisions on the point.  In November last year the then President of the EAT, Langstaff J reviewed the previous EAT decisions on the matter and determined that the uplift did apply to general damages in discrimination claims: Beckford v London Borough of Southwark UKEAT/0210/014.  However the matter is not settled and an appeal to the Court of Appeal is listed in another claim to be heard in December 2016: De Souza v Vinci Construction UK Ltd. 

The judgment of HHJ Richardson in Olayemi is admirably concise.  He considered that “no useful purpose” would be served by detailed exposition of the arguments.  He decided to follow Beckford for two reasons:

  1. it is the most recent, and most detailed review of authorities and it should be followed until there is an authoritative decision of the Court of Appeal; and
  2. he agreed with it: section 124(6) Equality Act 2010 gives a “clear direction” to award compensation which corresponds to the amount which could be awarded by the County Court.

He could not see why the uplift should be denied to Claimants in employment tribunal proceedings.

The EAT also had to deal with a further interesting point on causation: whether the Tribunal’s finding that the Claimant’s previous PTSD “contributed to causation” was appropriate.  The psychiatric evidence was that “the previous history of PTSD will have contributed to the tune of 10-15% towards the causation of the present episode”.  Therefore the ET had applied a blanket 12.5% discount on all compensation.  The difficulty with their approach was that they had failed to consider whether the previous episode of PTSD was a material cause of the present episode or whether it had merely rendered the Claimant vulnerable to a further episode.  If it was the latter situation, they had to take her as they found her (the egg shell skull rule) and would be liable for the entirety of the injury.  If it was the former, the injury would have to be divisible for them to escape liability for the entirety of the injury.  There were two questions in those circumstances: “whether the injury is divisible and how it may be divided between the causes”.  The Tribunal had failed to undertake that exercise and so the matter was remitted.

Olayemi acts as a helpful reminder to all employment practitioners that when dealing with damages arising out of discrimination, one is dealing with a statutory tort.  Therefore the standard principles of tortious recovery apply: these include the critical distinctions of causation of injury more usually seen in personal injury and clinical negligence claims.

Cloisters has significant expertise in advising and representing organisations and individuals in all aspects of equality and discrimination as well as employment law.