Consultation on Vento bands uprating published

The Presidents of the Employment Tribunals of England & Wales and Scotland have released a consultation document which suggests how the so-called Vento bands could be amended to take into account the rate of change of inflation since Da'Bell v NSPCC and the Simmons v Castle 10% uplift.

**Background *In Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871, [2003] IRLR 102, [2003] ICR 318 the Court of Appeal in England & Wales identified three broad bands of compensation for injury to feelings awards, as distinct from compensation awards for psychiatric or similar personal injury. These bands were uprated in 2009 in Da'Bell v NSPCC (2009) UKEAT/0227/09. The bands have not been uprated since then although the bands and awards for injury to feelings can be adjusted by individual Employment Tribunals where there is cogent evidence of the rate of change of inflation. The purpose of this consultation is to decide how the bands should be uprated and by how much having regard to two cases: Simmons v Castle [2012] EWCA Civ 1039 and 1288; and [De Souza v Vinci Construction (UK) Ltd ]()*[2017] EWCA Civ 879.

  1. The case of Simmons v Castle [2012] EWCA Civ 1039 and 1288 declared that with effect from 1 April 2013 the proper level of general damages in all civil claims for pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit or mental distress would be 10% higher than previously. This followed upon changes to the rules governing the recovery of costs in personal injury litigation in the civil courts in England & Wales. Several cases came to the EAT which had to determine whether the uplift applied to injury to feelings awards brought in the Employment Tribunal and the issue was finally resolved in De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879.
  1. In De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879 the Court of Appeal has ruled that the 10% uplift provided for in Simmons v Castle should also apply to Employment Tribunal awards of compensation for injury to feelings and psychiatric injury in England and Wales. The Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases now incorporate the 10% uplift provided for in Simmons v Castle so if an Employment Tribunal relied upon the Judicial College Guidelines in making an award for psychiatric injury then that award would comply with Simmons v Castle and De Souza v Vinci Construction (UK) Ltd. So far as awards for injury to feelings are concerned, the Court of Appeal in De Souza invited the Presidents of the Employment Tribunal in England & Wales and in Scotland to issue fresh guidance which adjusted the Vento figures for inflation and, at least so far as England and Wales was concerned, so as to incorporate the Simmons v Castle uplift.

Method The recommended method of uprating the bands is to use RPI as the measure of inflation and to apply the 10% uplift in the following way:

First uprate using the RPI value of 178.5 in December 2002 and the RPI value of 249.5 in April 2013; then apply the 10% uplift; then uprate again to take account of the rate of inflation as at 18 July 2017 which is 272.3.

The bands will then be rounded to the nearest £1,000 and result in:

**Lower band: £1,000 to £8,000 Middle band: £8,000 to £25,000 Upper band: £25,000 to £42,000**

Responses to the consultation The two questions asked are:

  1. Do you consider that RPI is the appropriate index in connection with up rating of awards? If not, please explain why you disagree.
  1. Do you agree with the proposed approach to uprating of the Vento bands? If not, please explain why you disagree.

Responses to the consultation should be received by Friday 25 August 2017 and should be sent to [email protected] (England & Wales) or [email protected] (Scotland)

Published: 25/07/2017 14:57

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