Pereira de Souza v Vinci Construction (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Lindblom,Lord Justice Gross |
| Judgment Date | 04 July 2017 |
| Neutral Citation | [2017] EWCA Civ 879 |
| Docket Number | Case No: A2/2015/0447 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 2017 |
[2017] EWCA Civ 879
Lord Justice Gross
Lord Justice Underhill
and
Lord Justice Lindblom
Case No: A2/2015/0447
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Employment Appeal Tribunal
HH Judge Serota QC
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant was represented by her husband, Mr Greg O'Cathail
Mr Thomas Cordrey (instructed by Magrath Solicitors) for the Respondent
Hearing date: 23 May 2017
Approved Judgment
INTRODUCTION
From 1 May 2005 to 15 November 2012 the Appellant was employed as a cleaner at London Underground's premises in High Holborn. Initially she was employed by Rentokil Initial Facilities Services (UK) Ltd but on 29 April 2012 her employment transferred under TUPE to the Respondent, Vinci Construction (UK) Ltd. Vinci has inherited Rentokil's liabilities arising out of the employment relationship.
The Appellant has brought five sets of proceedings against her employers in the employment tribunal. The first two were brought against Rentokil, but Vinci has been substituted as the respondent. The last three were commenced post-transfer and were accordingly against Vinci from the start: the conduct complained of in the first of them was originally conduct on the part of Rentokil, but the Appellant complains also of its continuation by Vinci. We are only concerned with the first three cases. They are primarily claims brought under the Equality Act 2010 for disability discrimination (including harassment and victimisation), though there are also claims for arrears of pay. The details of the claims are immaterial for the purpose of this appeal. It is sufficient to say that they include allegations of various forms of bullying and other inappropriate treatment.
At a case management hearing on 8 October 2012 Vinci conceded liability in respect of the entirety of the first three claims, which of course related primarily not to its own conduct but to that of Rentokil. Some forty acts complained of were identified from an analysis of the three claims, and a remedy hearing was directed.
Vinci's concession reflected the stance which it had already taken in relation to a number of complaints which the Appellant had pursued against Rentokil under its internal grievance procedure. The complaints had been dismissed at the first stage of the procedure, but at an appeal conducted by Vinci management on 7 September 2012, following the transfer, all her grievances had been upheld, the chairman acknowledging that Rentokil had been "guilty of systemic management failures and a failure in their duty of care towards [the Appellant]".
The remedy hearing took place over four days in April 2013 before an employment tribunal chaired by Employment Judge Charlton. The Appellant was represented by her husband, Mr Greg O'Cathail. The Respondent was represented by Ms Lucinda Harris of counsel.
By a judgment sent to the parties on 26 November 2013 the Appellant was awarded compensation in the sum of £12,000 (plus interest). The elements in that award were:
(1) Injury to feelings. The Tribunal awarded £9,000 for injury to feelings. It referred to the well-known decision of this Court in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, [2003] ICR 318, and to the decision of the EAT in Da' Bell v National Society for Prevention of Cruelty to Children [2009] UKEAT 0227/09, [2010] IRLR 19, in which the guidance figures given in Vento were up-rated for inflation. On that basis the award was towards the lower end of the "middle Vento band", being £6,000-£18,000.
(2) Psychiatric injury. The Tribunal awarded £3,300 for the exacerbation of a depressive illness which the Appellant had suffered for some months.
Two features of those awards give rise to the present appeals.
First, the award for psychiatric injury incorporated a 10% uplift corresponding to that applied in the civil courts as a result of the decision of this Court in Simmons v Castle [2012] EWCA Civ 1039 and 1288, [2013] 1 WLR 1239. The Tribunal applied no such uplift to the award of compensation for injury to feelings.
Secondly, the Tribunal declined to apply any uplift to the award under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, which applies where an employer has failed to comply with the provisions of a relevant ACAS code.
The Appellant appealed to the EAT on a large number of grounds, but the only grounds which were permitted to proceed to a full hearing related to the Tribunal's failures to apply the Simmons v Castle uplift to the injury to feelings award and to apply any uplift under section 207A. The Respondent cross-appealed against the application of the uplift to the psychiatric injury award.
The appeal was heard in the EAT by HHJ Serota QC, sitting alone, on 8 January 2015. Mr O'Cathail was unable to represent the Appellant: Judge Serota records at para. 19 of his judgment that she was able to add little to what appeared in the very full skeleton argument prepared by him. Mr Thomas Cordrey of counsel appeared for the Respondent. The Judge announced his decision at the end of the hearing but handed down a written judgment on 20 March 2015, now reported at [2015] ICR 1034. He dismissed the Appellant's appeal in both respects and allowed the cross-appeal.
The Appellant appeals against all aspects of the order of the EAT. She is again unrepresented but assisted by her husband. She was unable for health reasons to attend the hearing before us but she and Mr O'Cathail appeared by video-link. Mr Cordrey again appeared for the Respondent, and we were assisted by his clear and focused skeleton argument and oral submissions. Because the Simmons v Castle point is of considerable general importance, we considered, and canvassed with the parties, whether we should seek the assistance of an amicus; but we have in the end concluded that that is not necessary.
(A) THE SIMMONS v CASTLE ISSUE
COMPENSATION FOR NON-PECUNIARY LOSS IN DISCRIMINATION CASES
Enforcement of rights under the 2010 Act is the subject of Part 9. Claims may be brought either in the civil courts (that is, in England and Wales, the County Court) or in the Employment Tribunal, depending on the Part of the Act under which the claim arises.
Claims in the civil courts are treated first: see chapter 2. Section 119 (2) (a) provides that the County Court has power to grant any remedy which could be granted in the High Court in proceedings in tort. That means, among other things, that it can make an award of damages for personal injury: that, as first authoritatively recognised in Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] ICR 11701, includes what is generally described as "psychiatric injury". Section 119 (4) provides:
"An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis)."
Claims in the Employment Tribunal are treated in chapter 3. Remedies are governed by section 124. Section 124 (6) provides:
"The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court … under section 119."
Those provisions substantially reproduce those of the predecessor anti-discrimination legislation. It has long been the practice of employment tribunals to make awards in discrimination cases in respect of both injury to feelings and, where the evidence supports it, psychiatric injury. Those two heads are regarded as conceptually distinct, and attracting separate awards, though the authorities point out that they are liable in practice to overlap and warn against double-counting (see, e.g., HM Prison Service v Salmon [2001] UKEAT 21/00, [2001] IRLR 425). As regards the assessment of compensation for injury to feelings, the leading authority is Vento, to which I have already referred. As regards the assessment of compensation for psychiatric injury, the tribunal will in principle (and subject to the issue raised by this appeal) follow the level of damages for equivalent injury in the civil courts. As to that, the Judicial College publishes regularly updated "Guidelines for the Assessment of General Damages in Personal Injury Cases", which include a chapter covering psychiatric and psychological damage.
The background to the decision in Simmons v Castle is well-known, and I need give only the barest summary. In December 2009 Sir Rupert Jackson published his "Review of Civil Litigation Costs: Final Report". That recommended a number of changes to the rules governing the recovery of costs in personal injury litigation, including the abolition of the right of successful claimants proceeding under a CFA to recover from defendants the amounts of the success fee payable to their solicitors and of their ATE premiums. That meant that their net recovery would be reduced. As a quid pro quo Sir Rupert recommended that there be "an increase in non-pecuniary general damages, such as pain, suffering and loss of amenity in tort cases, for all claimants".
That element in Sir Rupert's recommendations could only be implemented by the courts. Simmons v Castle was the vehicle for that implementation. There were in fact two decisions of this Court (in both cases comprising Lord Judge CJ, Lord Neuberger MR and Sir Maurice Kay). In the first, handed down on 26 July 2012, the general principle was enunciated. There was then a further hearing at which certain issues raised by the Association of British Insurers, the Association of Personal Injury
Lawyers and the Personal Injuries Bar Association were considered. The Court handed down a second judgment on 10 October 2012. Its conclusion was summarised at para. 50...To continue reading
Request your trial
-
Mrs A Diop v Standard Care Recruitment Ltd: 4123430/2018
...lower band would go up to £6,000; the middle to £18,000; and the upper band to £30,000. 48. In De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, IRLR 844, the Court of Appeal suggested that it might be helpful for guidance to be provided by the President of Employment Tribunals (E......
-
McGuckin vs MDC Tiles & Bathrooms Limited
...award for injury to feelings, where same can be awarded pursuant to 1996 Order, in the case of De Souza v Vinci Construction Limited [2017] EWCA Civ 879, the Court of Appeal has recently confirmed that the 10% uplift provided for in Simmons v Castle [2012] EWCA Civ 1288 should apply to an a......
-
Krishna Moorthy v The Commissioners for HM Revenue and Customs
...county court or the sheriff under section 119.” 85 The effect of section 124(6) has recently been considered by this Court in De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, [2017] IRLR 844, where Underhill LJ (with whom Lindblom and Gross LJJ agreed) said at [27]: “I believe th......
-
Sheridan vs Peninsula Business Services,B Stern-Gillet
...not necessary to consider this issue further. 5.9 In relation to injury to feelings, in the case of De Souza v Vinci Construction Ltd [2017] EWCA Civ 879, the Court of Appeal has recently confirmed that the 10% uplift provided for in Simmons v Castle [2012] EWCA Civ 1288 should apply to an ......