Good news for claimants! The Employment Appeals Tribunal (EAT) has confirmed in Cadogan Hotel Partners Ltd –v- Ozog [2014] that awards for injury to feelings in discrimination cases are subject to a 10% uplift following the Court of Appeal’s decisions in Simmons v Castle [2012] EWCA Civ 1039 and Simmons v Castle [2012] EWCA Civ 1288.

The earlier Simmons case, related to an appeal against an award of damages for personal injury. In its judgment, the Court of Appeal set out the future approach to the measure of general damages in tort actions. The Court concluded that a 10% increase would apply to awards of damages in tort actions in all cases where judgment is given, after 1 April 2013.

This judgment was intended to give effect to the reforms proposed by Sir Rupert Jackson in his Final Report on Civil Litigation Costs, published in 2009. Recommendation 10 of the Report states “the level of general damages for personal injuries, nuisance and all other civil wrongs to individuals should be increased by 10%”.

The latter Simmons case, was an application brought by the Association of British Insurers and the Respondent Defendant, Mr Castle, inviting the Court to reconsider whether, the 10% increase should apply to cases where the Claimant’s funding arrangements for his or her legal costs had been agreed after 1 April 2013.

The Court also heard submissions from two other interested parties, the Association of Personal Injury Lawyers (APIL) and the Personal Injury Bar Association (PIBA).

The Court of Appeal concluded that with effect from 1 April 2013, the proper level of general damages in all civil claims for (I) pain and suffering, (ii) physical inconvenience and discomfort, (iv) social discredit or (v) mental distress, will be 10% higher, unless that Claimant falls within Section 44(6) of LASPO i.e. has entered into a CFA/CCFA.

In Cadogan Hotel Partners Ltd, the EAT were concerned with an appeal against an award of injury to feelings, in a successful case of sexual harassment and direct sex discrimination. The EAT agreed that the award of £10,000 was too high and substituted an award of £6,000 plus a further £600 to include the 10% uplift to be applied on general damages awarded after 1 April 2013.

This is certainly good news for successful Employment Tribunal Claimants in discrimination cases, as any awards for injury to feelings will now include a 10% uplift in the amount awarded.

Clare Walsh, Legal Executive, Employment

From 30 June 2014, employees with 26 weeks’ service have the right to request flexible working. The right is no longer limited to employees with children under 17, (or 18 if the child is disabled) or to those caring for an adult. Now any eligible employee can apply to work flexibly for any reason.

The request must be made in writing and only one request can be made in any 12-month period. Employers will have to consider requests in a “reasonable manner” and notify employees of their final decision within three months. Acas has issued a new Code of Practice  for handling flexible working requests and non-statutory guidance

While this is a positive development for employees, the prescribed reasons to refuse a request remain unchanged and are very wide. An employer can refuse a flexible working request on the basis of one or more of the following eight prescribed reasons:
1. The burden of additional costs
2. Detrimental effect on ability to meet customer demand
3. Inability to re-organise work among existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality
6. Detrimental impact on performance
7. Insufficiency of work during the periods the employee proposes to work
8. Planned structural changes

The new statutory scheme does not require employers to allow employees a right of appeal. However, the Acas code recommends that an appeal should be permitted.

Employees can bring an Employment Tribunal claim if:

• the employer fails to deal with their application in a reasonable manner;
• the employer fails to notify them of their decision within 3 months;
• the employer rejects the application for a reason other than one of the grounds set out above;
• the decision to reject the application is based on incorrect facts; or
• the employer treated the application as withdrawn when it was not entitled to do so.

If the Tribunal upholds the claim, a Tribunal can order the employer to reconsider the request and pay compensation of up to eight weeks’ pay (currently capped at £464 per week).

Tryvana Ekladious, Employment Solicitor