Guidance on uplifts when the Acas Code is breached


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The Employment Appeal Tribunal (EAT) has given guidance to tribunals on assessing the appropriate percentage uplift to compensation for failure to comply with the Acas Code on Disciplinary and Grievance Procedures (the Acas Code) in Slade and another v Biggs and others.

Mrs Biggs and Ms Stewart worked at properties owned by Sir Benjamin Slade. They were employed by Offer Ltd, but were TUPE transferred to Aethelbert Ltd shortly before their employment terminated. Both became pregnant during 2017, something which the tribunal found that Sir Benjamin considered as "highly inconvenient", and as a result of which he decided to "engineer their departure from their employment" and set about pursuing "a course of conduct" to encourage them to resign. This included not paying them correctly, failing to pay Mrs Biggs' statutory maternity pay, ignoring their grievances and insisting that Mrs Biggs resign.

The tribunal found that Sir Benjamin, and Mr Hamilton (who had carried out his instructions) had acted vindictively and were liable for pregnancy and maternity discrimination against the claimants. It awarded the maximum 25% uplift to the unfair dismissal, injury to feelings and aggravated damages awarded to both employees.

On appeal the EAT upheld the tribunal's decision to award the maximum 25% uplift. It also set out a four-stage test for tribunals assessing the appropriate percentage uplift for failure to comply with the Acas Code. First the tribunal should ask whether it is just and equitable to award an uplift, then it should consider what is a just and equitable percentage. It should then turn its mind to whether the uplift overlaps with other general awards and, if so, what is the appropriate adjustment to avoid double-counting. Finally consideration should be given to whether the sum arrived at by the tribunal is disproportionate and, if so, what further adjustment needs to be made.

Take note: The four-stage test set out in Biggs is a useful guide for tribunals considering whether to award an uplift for a breach of the Acas Code and how much such an uplift should be. The EAT also made it clear that the liability for an uplift under the Acas Code will apply equally to all respondents (Sir Benjamin and Mr Hamilton in this case) where the loss suffered has been attributable to their conduct.

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