Labour & European Law Review Weekly Issue 415 15 April 2015
The Court of Appeal said in 2013 that awards should be uplifted by 10 per cent in certain, defined circumstances. In Chawla v Hewlett Packard Ltd, the Employment Appeal Tribunal (EAT) held that these circumstances did not include awards for injury to feelings in discrimination cases brought in tribunals.
Mr Chawla started work for Arcsight as an IT technical support worker in October 2005. The company was taken over by Hewlett Packard (HP) in 2010 and Mr Chawla’s employment transferred over. He went off sick in May 2007 with stress and never returned to work.
He brought various claims for disability discrimination, including a failure to make reasonable adjustments. Mr Chawla argued that he was substantially disadvantaged by the company’s practice of shutting down access to email and internet for employees on long-term sickness absence, as a result of which he was not told about his right to exercise his share option plan.
The tribunal held that the company had a provision criterion or practice of shutting down access to email and internet for employees on long-term sickness absence. This substantially disadvantaged Mr Chawla in that he was not told about developments to his terms and conditions of employment in a timely fashion when he was off sick and consequently suffered a number of losses or potential losses. He had therefore been subjected to disability discrimination.
It then made an award of £5,000 for injury to feelings for HP’s failure to provide the information on time and a further £5,000 for personal injury because of the impact on his health.
Mr Chawla appealed (among other things) against the award for injury to feelings which he said should have been at least in the middle range of awards (between £6000 and £18000) as set out in Vento v Chief Constable of West Yorkshire Police (2). It should also have been increased by 10 per cent following the decision in Simmons v Castle (weekly LELR 302) in which the Court of Appeal held that the level of general damages in civil claims for “mental distress” would be 10 per cent higher from April 2013.
The EAT rejected his application for a 10 per cent uplift on the basis that the increase was only for cases in which the then existing costs regime was to be changed by the implementation of reforms recommended in the Review of Civil Litigation Costs by Sir Rupert Jackson. As there is a “no costs” regime in tribunals and EATs, the rationale of increasing general damages therefore only applies in the civil courts and not to injury to feelings in discrimination cases in tribunals, although this contradicted the decisions of two other EATs.
As for the assessment for compensation for injury to feelings, that was for the tribunal to decide, having heard the evidence. It was not under an obligation to attribute the award to a particular band in Vento but this one was, in fact, consistent with the guidelines as it was just between the low and middle bands.
This does not affect the “uprating” of awards for injury to feelings in discrimination cases referred to in Da’Bell and Bullimore, undertaken where it is necessary to do so to reflect the current value of money. It may be necessary, therefore, for that reason to increase the amounts awarded in previous guideline cases.
The increase in guideline figures by 10 per cent decided by the Court of Appeal in Simmons v Castle was made for a different reason. The EAT’s decision in the present case not to award an uplift of 10 per cent is contrary to the decision reached by other divisions of the EAT in The Cadogan Hotel Partners Ltd v Mr Ozog and The Sash Window Workshop Ltd. v King.