In a recent decision, the Employment Appeal Tribunal (EAT) has set out guidance for tribunals on the level of uplift to compensation to award for an employer’s failure to comply with the Acas Code on Disciplinary and Grievance Procedures.
Slade and another v Biggs and others, EA-2019-000687 and EA-2019-000722
Two employees brought claims for unfair dismissal and pregnancy and maternity discrimination against their employer. A tribunal held that the termination of the employment of both employees had been engineered by their employer, who had considered it “highly inconvenient” that both had become pregnant at around the same time. It found that he had pursued a “course of conduct” that was designed to encourage the employees to resign, including withholding pay, failure to pay SMP, a spurious TUPE transfer and ignoring their grievances.
One of the employees (S) was dismissed for alleged gross misconduct shortly after giving birth prematurely, without any proper procedure being followed, in what the tribunal described as “one of the most egregious acts of discrimination possible”. The other employee (B), resigned after her grievance was ignored. The tribunal held that she had been constructively dismissed. The claims for unfair dismissal and pregnancy and maternity dismissal were upheld in respect of both employees. The tribunal awarded the employees compensation for unfair dismissal, injury to feelings and aggravated damages. It awarded the maximum 25% uplift to the compensation awards to reflect the employer’s failure to follow the Acas Code.
The employer appealed against the 25% uplift, on the grounds that it was too high to be proportionate or acceptable. They also argued that by applying the uplift to both the injury to feelings and aggravated damages awards, the tribunal had ‘double counted’.
The EAT has dismissed the appeal, upholding the decision of the employment tribunal to apply a 25% uplift to the awards for aggravated damages and injury to feelings.
The EAT was satisfied from the tribunal’s reasoning that there was no obvious or significant double-counting in the awards for aggravated damages and injury to feelings on the one hand, and the reasons for applying a 25% uplift. The breaches of the Acas Code were objective and could be distinguished from the vindictiveness and spuriousness of the disciplinary process, which was relevant to the injury to feelings award. The application of the 25% uplift was not too high to be proportionate or acceptable; the statutory question is whether the percentage uplift is just and equitable in all the circumstances.
Consequences of this decision
The EAT set out in its decision guidance for tribunals to follow when assessing the appropriate percentage uplift for an employer’s failure to comply with the Acas Code:
- is it just and equitable to award any Acas uplift?
- if so, what is a just and equitable percentage, not exceeding but possibly equalling 25%?
- does the uplift overlap, or potentially overlap, with the other general awards, such as injury to feelings? If so, what is the appropriate adjustment to the percentage award in order to avoid double-counting?
- is the sum of money represented by the application of the percentage uplift disproportionate in absolute terms? If so, what further adjustment needs to be made?
The application of the maximum 25% uplift for breaching the Acas Code can add a substantial figure to the level of compensation payable by the employer, particularly in claims of discrimination where injury to feelings and aggravated damages can be awarded. In this case, the value of the uplift alone was just over £11,000 in B’s case and just under £15,500 in S’s case.
These articles are from the December 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2021.