Tue 14 Dec 2021

25% Acas Code uplifts correct as EAT endorses four-step guidance

Where an employer unreasonably fails to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures, an uplift of up to 25% can be made to relevant awards if an Employment Tribunal considers it just and equitable to do so.

Background facts

In Slade and another v Biggs and others, two employees, Mrs Biggs (B) and Ms Stewart (S), notified their employer, A Ltd, of their pregnancies. The owner of the hospitality venues where they worked found these pregnancies inconvenient and instructed a series of actions that were held by the tribunal, at first instance, to be engineering their departure by making their lives deliberately difficult and, in doing, so committed “one of the most egregious acts of discrimination possible”. This included a spurious TUPE transfer, B’s grievance being ignored (following which she resigned) and S being summarily dismissed for gross misconduct following a sham disciplinary.

B was awarded compensation of £23,243.50 (including an uplift of 25%) along with £20,000 injury to feelings and £5,000 aggravated damages. Aggravated damages are exceptionally awarded in discrimination cases where there is malice or spite or the employee complaints are trivialised and rarely exceed £5,000. There is no directly equivalent concept in Scots law. In this case, the injury to feelings and aggravated damages were also then increased by the maximum 25% uplift for breach of the relevant Acas code.

S was awarded compensation of £41,375.32 (uplifted by 25%) along with £25,200 for injury to feelings and £5,000 aggravated damages, both again to be uplifted by 25%.

Both B and S also received TUPE failure to inform and consult awards of just over £6,000 but these fell outwith the scope of the uplift regime.

Appeal to the EAT

The EAT dismissed the appeal. There was no obvious or significant double-counting in applying the maximum 25% uplift to both the injury to feelings and aggravated damages awards. The EAT noted that the evaluative approach of an ET assessment in such cases will not be “mathematical” and it is not a case of “credits or debits” being applied between awards which are assessing different things in different ways. The appellants accepted that an Acas uplift may be regarded as punitive as well as compensatory.

Tribunals have a broad just and equitable discretion in applying any uplift and the amount of the uplift. The top of the range 25% maximum uplift should be applied to only the most serious cases but such cases need not be “exceptional”.

The uplift was deemed proportionate to the procedural shortcomings in question compared to the absolute monetary amount of the awards and so there was no need for it to be adjusted downwards.

Guidance to ETs for Uplift cases

The EAT helpfully set out a four-step guide for tribunals assessing the appropriate percentage uplift to award in future cases:

  1. Is the case such as to make it just and equitable to award any ACAS uplift?
  2. If so, what does the ET consider a just and equitable percentage, not exceeding, although possibly equalling, 25%?
  3. Does the uplift overlap, or potentially overlap, with other general awards, such as injury to feelings; and, if so, what in the ET's judgment is the appropriate adjustment, if any, to the percentage of those awards in order to avoid double-counting?
  4. Applying a final sense-check, is the sum of money represented by the application of the percentage uplift arrived at by the ET disproportionate in absolute terms and, if so, what further adjustment needs to be made?

Grossing up injury to feelings and aggravated damages award

The EAT further held that the tribunal was correct to gross up the injury to feelings and aggravated damages awards.

This article was co-written by Jenna Alexander, Trainee Solicitor.

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