EAT overturns key parts of remedy decision in discrimination case
The EAT has overturned key parts of a remedy judgment involving harassment, victimisation and constructive dismissal, providing important guidance on ACAS Code uplifts, medical evidence and the assessment of loss in discrimination cases.
Background
The case of A and B v C Ltd and Ors arose from a workplace dispute in which the claimant raised serious allegations of harassment and victimisation, supported by a colleague. Both resigned after being suspended on allegations the Tribunal later found to be unfounded. At the liability stage, a range of discrimination and constructive dismissal claims succeeded.
The case then moved to a remedy hearing. The Tribunal awarded compensation for injury to feelings and limited financial losses, but made no ACAS Code uplift, rejected both personal injury claims and concluded that neither claimant had mitigated their losses. It also mistakenly treated a quarterly bonus as an annual payment. Both claimants appealed.
The EAT considered whether the Tribunal had correctly applied the legal tests when assessing compensation.
The EAT’s decision
The EAT found several errors. First, the Tribunal was wrong to conclude that the respondent had shown a “broad degree of compliance” with the ACAS Code. Earlier findings showed that key grievances were not investigated, meetings were missed and suspensions were based on “trumped up” allegations. The Tribunal should have taken these findings into account when deciding whether an uplift was justified.
The EAT also held that the Tribunal had applied the wrong approach to the medical evidence. In one claimant’s case, it asked whether the illness was “solely or mainly” caused by discrimination, when it should have considered whether the discrimination materially contributed to her deterioration or exacerbated an underlying condition. Even without expert evidence, the Tribunal was required to reach a view on causation using the materials available.
There were further problems with the assessment of loss of earnings, including inconsistencies in the reasoning about when each claimant became fit for work. The Tribunal must reassess those periods and correct the miscalculation of the bonus. The issues are to be remitted to a fresh Tribunal.
Learning points for employers
The case is a reminder of the importance of adhering to the ACAS Code when handling grievances, particularly those involving discrimination or harassment. Delays, gaps in investigation or unclear decision-making can significantly affect compensation.
For more information or advice, please contact Lucy Cinnamond in our Employment team.