Where a claim under a jurisdiction listed in Schedule A2 TULRCA 1992 concerns a matter to which the ACAS Code of Practice on Disciplinary and Grievance Procedures applies, and the employer unreasonably failed to comply with it, the tribunal may, if just and equitable, “increase any award it makes to the employee by no more than 25%” (s.207A(2)). An unreasonable failure by the employee allows a reduction on the same terms (s.207A(3); Holmes v Qinetiq).
Approach. Slade v Biggs [77] sets four stages: is any uplift just and equitable; what percentage, up to 25%; does it overlap with other awards, and what adjustment avoids double counting; and a final check that the sum is not disproportionate in absolute terms. The maximum is for the most serious cases, which need not be exceptional. Where the underlying award is large, ignoring the absolute value of the uplift is an error (Acetrip Ltd v Dogra [102]-[104]).
Which heads. Slade upheld a 25% uplift on the compensatory award, injury to feelings and aggravated damages. Whether it reaches an award for psychiatric injury has not been decided on appeal: in Base Childrenswear Ltd v Otshudi the ET applied 25% across all its non-pecuniary awards, personal injury included, and the point was not appealed. The same failure should not be counted twice: where an unanswered grievance founded both aggravated damages and the uplift, the EAT reduced the aggravated damages (Otshudi).
Scope. Redundancy dismissals are an express carve-out from the Code (Lund v St Edmund's School Canterbury [12]), but an employer cannot escape it by dressing up a conduct or capability dismissal as redundancy, and a sham grievance process engages the Code in its own right (Rentplus UK Ltd v Coulson [30], [53]). A grievance and appeal submitted after dismissal and left unanswered supported a 25% uplift in Otshudi.
ACAS Code of Practice; scope. The Code itself does not apply to redundancy dismissals or the non-renewal of fixed-term contracts on their expiry [12]. But it is the initiation of the process, not its ultimate outcome, which decides whether the Code applies: it applies where disciplinary proceedings are, or ought to be, invoked against an employee [12]-[13].
Acas Code; uplift to compensation; ill-health capability dismissal. The EAT (Simler P) concluded that the Acas Code did not apply to a dismissal for lack of capability caused by ill health, and upheld the tribunal's refusal to apply an uplift to the claimant's compensation. A 'disciplinary situation' is not necessarily limited to misconduct or poor performance, but it does not extend to a procedure to terminate employment for incapability due to ill health where there is no element of culpable conduct on the employee's part. The Code is limited to internal procedures likely to be concerned with the correction or punishment of culpable misconduct or performance, or some other form of culpable behaviour. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; injury to feelings; aggravated damages; personal injury; ACAS uplift; double counting. The ET upheld a complaint of racial harassment in the fact and manner of the claimant's dismissal after three months' employment and awarded £16,000 for injury to feelings in the middle Vento band, £5,000 aggravated damages and £3,000 for personal injury: £24,000 for non-pecuniary loss, plus interest [9]-[14]. It then applied a 25% uplift under s.207A TULRCA 1992 for the failure to respond to the grievance and appeal, £6,880: 25% of the whole of that award, personal injury included, together with interest of £3,520 [14]-[15]. On the employer's remedy appeal the EAT (HHJ Eady QC) held that a one-off act is not confined to the lower Vento band: the question is always the particular effect on the individual claimant [36]. The ET was plainly entitled to make the uplift, which was not appealed [47]. But the failure to respond to the grievance had also been one of four factors behind the aggravated damages award, and that double counting was relevant to the overall award for non-pecuniary loss [47]-[48]. Aggravated damages were reduced by £1,000 to £4,000, with interest and the uplift to be recalculated on the reduced figure [55]-[56]. Liability went separately to the EAT (HHJ Stacey, 31 August 2018) and then to the Court of Appeal, which dismissed the employer's appeal on the burden of proof without considering remedy: [2019] EWCA Civ 1648 (Underhill LJ) [3]-[4], [34], [45].
ACAS Code uplift; s.207A TULRCA 1992. Four-stage approach at [77]: (i) is the case such as to make it just and equitable to award any uplift; (ii) if so, what percentage, which must not exceed 25 per cent though it may equal it; (iii) does the uplift overlap, or potentially overlap, with other awards, and what adjustment to the percentage is required to avoid double counting; (iv) a final sense check that the sum of money represented by the uplift is not disproportionate in absolute terms. The 25 per cent maximum is for the most serious cases, but such cases need not be exceptional. The EAT upheld a 25 per cent uplift applied to the compensatory award, injury to feelings and aggravated damages. Full name (1) Sir Benjamin Slade Bt (2) Andrew Hamilton v (1) Melissa Biggs (2) Roxanne Stewart (3) Aethelbert Ltd; there is no official neutral citation and no ICR report.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.