This was an appeal to the Court of Appeal (CA) from the decision of the Employment Appeal Tribunal (EAT). The relatively straightforward issue in the appeal was whether a 10% uplift should be applied to awards of compensation for injury to feelings and for psychiatric injury in discrimination cases in an employment tribunal. The basic premise of the argument was that the uplift is necessary as the award should correlate with what would be awarded in an equivalent case in the County Court. While the EAT had held that this uplift only applied to civil claims and was not applicable to discrimination awards in employment disputes, the CA allowed the appeal. The CA emphasised the plain language of the Equality Act 2010 which “straightforwardly” requires that the level of awards in the employment tribunals and the County Court should correspond. In allowing the appeal, the CA candidly recognised that the cost regimes in the County Court and the employment tribunals are different in that recoverability of costs in the latter are generally irrecoverable.

Practical Lessons

The EAT had decided in the lower decision that the 10% uplift was not applicable to claimants in employment tribunals. In a nutshell, the rationale for the uplift i.e. a quid pro quo for the loss of certain recoverable costs, was not relevant to claimants in the tribunal since costs are generally not recoverable anyway. Yet the literal reading of statutory language is the victor here and parity between the County Court and employment tribunals is preserved. The CA noted that injury to feelings or psychiatric injury caused by an act of discrimination in the workplace is not inherently different from the same injury caused by an act of discrimination in, for example, an educational context outside the scope of tribunal jurisdiction. The 10% uplift has not been witnessed in Northern Ireland since Conditional Fee Agreements (CFA) are unenforceable in contrast to England & Wales. If CFAs, which require the success fee to be deducted from the plaintiff’s damages, were to be introduced in NI a similar form of safeguard would likely be called for and this CA decision would assume real significance.