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10% uplift in Employment Tribunals

August 22nd, 2016

The 10% uplift in Employment Tribunals

The case of Simmons v Castle [2012] EWCA Civ 1039 and [2012] EWCA Civ 1288 held that damages in personal injury claims should be increased by 10% and in the recent case of Summers v Bundy [2016] EWCA Civ 126 the Court of Appeal clarified that the 10% uplift on general damages is not discretional and held that:-

“The claimant was entitled as of right to an award of general damages including the 10 per cent uplift and the judge had no discretion to depart from that.”

So, are awards for injury to feelings in the Employment Tribunal subject to this same uplift?

The Employment Appeal Tribunal decisions are inconclusive and currently there are three decisions in favour of the uplift and two against.

The judgments from the Employment Appeal Tribunal that have not applied the uplift are:-

which held that “ET [Employment Tribunal] claims are not included on the list of specific types of litigation dealt with in the [Jackson] report.  The rationale for the uplift explained by the Court of Appeal in Simmons v Castle does not apply to litigation in the ET.  Accordingly the 10% uplift decided upon in that case does not apply to increase guidelines in cases on injury to feelings in discrimination cases in ET’s.”

in which HHJ Serota QC stated:-

 “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.

  1. 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…

  1. Had the Court of Appeal intended to extend the uplift to proceedings in Employment Tribunals, in my opinion it would have said so clearly.”

However the judgments in favour of the uplift are set out below:-

 is the most recent case and considers the relevant authorities in relation to this point and The Honourable Mr Justice Langstaff (President) succinctly concludes:-

“In my view the starting point is the statute.  That requires, in effect, awards to be comparable in the Tribunals to those given in the county court.  Though the comparability may be broad, I do not see that that comparability allows for one set of awards to be consistently 10% elevated above the other.  That is not “broadly comparable” but “generally 10% different”.  Moreover, I think that this statute reflects an important aspect of judicial policy, which is that awards made in the Tribunals should broadly be coherent with those made in the civil courts.  It does not reflect well on a system of justice that the same injury, as it may seem to a member of the public, should be compensated in one regime at a level lower than it would in another, particularly given that in discrimination cases there is a general principle of effectiveness deriving from European authority which requires the award to be broadly the same.”

 where it was held:-

“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…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.”

Which concluded that:-

“In my judgment there is no basis for limiting the 10% increase to all torts save for the tort of discrimination.”

The most recent decision of Beckford v London Borough of Southwark gives a detailed analysis of the authorities and suggests that this is the line that the Employment Tribunals will take however there is still no definitive authority and we await a decision from the Court of Appeal on De Souza v Vinci, which is due to heard in December 2016, to clarify this.

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