10% increase in compensation for injury to feelings – the Vento bands and Simmons v Castle

by Laurie Anstis on July 5, 2017

Back in October 2012 I wrote about the case of Simmons v Castle and its implications for employment law.

In Simmons v Castle the Court of Appeal applied a general 10% uplift to “general damages”. There was no mention of compensation for injury to feelings in employment tribunal discrimination claims, but my conclusion at the time was that “it looks a lot like the effect of Simmons v Castle is also to raise compensation for injury to feelings in discrimination claims … by 10%.

The decision in Simmons v Castle was subsequently clarified, and I concluded that “the revised judgment seems to have made it even more likely that this increase applies to injury to feelings awards in discrimination claims“.

Since the, the EAT has come out with a number of judgments deciding that the uplift either did or did not apply to compensation for injury to feelings. At the last count there were two decisions saying it did, and two saying that it did not.

In De Souza v Vinci Construction (UK) Limited the Court of Appeal has now given what should be the definitive answer, with Underhill LJ finding that “there is no distinction to be drawn … between awards for psychiatric injury and for injury to feelings” – both should now be 10% higher than they were prior to 2013.

The “Vento bands” should thus be 10% higher than they were. Underhill LJ identified that the most recent uprating of the Vento bands for inflation was now some time ago, and recommends that there should be Presidential Guidance on the correct current level of the Vento bands, taking account both of inflation and of the Simmons v Castle 10% uplift.