President of the Employment Appeal Tribunal considers 10% uplift should apply to tribunal awards

Langstaff HHJ (the President of the EAT) has today handed down judgment in the case of Beckford v London Borough of Southwark UKEAT/0210/14/JOJ

The appeal deals with two points which are of importance:

1. The consideration of reasonable adjustments and the impact of disability when a tribunal is considering reengagement under section 115 Employment Rights Act 1996; and
2. Whether the Simmons v Castle [2012] EWCA Civ 1039 uplift of 10% applies to employment tribunal awards.

In relation to the first point, Langstaff HHJ held that although it was not relevant in this case as the tribunal had not made an error of law, employment tribunals would be well advised to consider the impact of reasonable adjustments when dealing with an application for re-engagement, where the disability may in part be responsible for finding that the employee was incapable of doing his/her job.

In relation to the second point, the President differed with the view expressed by His Honour Judge Serota AC in De Souza v Vinci Construction UK Ltd UKEAT/0328/14/DXA (due to be heard by the Court of Appeal on 7 December 2015) and preferred the earlier EAT judgment of Simler J: The Sash Window Workshop Ltd & Anor v King (Contract of Employment: Sick pay and holiday pay) [2014] UKEAT 0057_14_0112 (also on appeal to the Court of Appeal and due to be heard in February 2016).

Langstaff HHJ held that the 10% uplift does and should apply to awards made by employment tribunals whether for injury to feelings or to PSLA awards for personal injuries as a result of discrimination. His Honour Judge Langstaff found that Serota HHJ’s reasoning did not go deep enough or engage with section 124(6) Equality Act 2010. He further stated: “A litigant in the employment tribunal is in the very similar position to that a litigant in the civil courts now is. If such litigant wishes to represent themselves, they are free to do so, if they chose to engage advocates, they must pay. The way in which cases are funded in employment tribunals are more diverse than was the case in the county court, part of that is that it is open to a litigant to engage a lawyer on CFA basis”.