Guidance on percentage uplift for breach of the ACAS Code

Guidance on uplift for breach of the ACAS Code

In the case of Sir Benjamin Slade Baronet & Anor v Biggs & Others [2021] , the  Employment Appeal Tribunal (EAT) has given guidance on how to assess the percentage uplift on compensation for failure to comply with the ACAS Code on Disciplinary and Grievance Procedures.

Mrs Melissa Biggs and Ms Roxane 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 Melissa Biggs' statutory maternity pay, ignoring their grievances and insisting that Melissa Biggs should 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.

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?