Increased Compensation in Maternity Discrimination Case - After Employer Fails to Follow ACAS Code
Where a Claimant brings a successful Tribunal claim involving a disciplinary or grievance process, any compensation may be increased by up to 25%.
This is if the employer is found to have unreasonably failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code). A recent Employment Appeal Tribunal (EAT) decision provides a useful insight into the reasoning the Tribunal will apply when uplifting compensation in these circumstances.
Background on the Case
In Slade and anor v Biggs and ors, Mrs Biggs and Mrs Stewart were colleagues. Mrs Biggs went on maternity leave in September 2017, and Mrs Stewart disclosed her pregnancy in October 2017, giving birth in December 2017. Sir Slade, who owns venues operated by the Claimants' employer, engineered both women's departure on the basis of their 'highly inconvenient' concurrent pregnancies. Both Claimants were subjected to a spurious TUPE transfer and were not paid statutory maternity pay. Mrs Biggs raised a grievance which was ignored, and she subsequently resigned. Mrs Stewart was dismissed for gross misconduct following a sham process. The Claimants brought successful claims for unfair dismissal and maternity discrimination.
Uplift to Awards
The Tribunal awarded the Claimants compensation for their unfair dismissals. Both Claimants' compensatory awards were uplifted by the maximum 25% due to the employer's failure to follow the ACAS Code.
Separately, the Tribunal made awards to both Claimants for injury to feelings in respect of their discrimination claims. Aggravated damages were also awarded due to the seriousness of the case (given the discriminatory acts were so deliberate, and because of Sir Slade's conduct when giving evidence at Tribunal). Both the injury to feelings and aggravated damages awards were also uplifted by the maximum 25% for failure to follow the ACAS Code.
Appeal Against the Uplift
Sir Slade and his agent appealed, challenging the 25% uplift, arguing both that it was disproportionally high and that the 25% uplifts on the awards of injury to feelings and aggravated damages were a case of 'double-counting'. The appeals were dismissed, and the EAT held that the tribunal's reasoning indicated no obvious or significant double-counting. The value of the uplift was also not found to be disproportionately high.
Why Is This Case Important?
Few employers are likely to have such direct and adverse findings made against them. However the case does provide a useful reminder of the importance of following the ACAS Code, particularly given the potential financial consequences where uplifts might be applied to different awards. Likewise, it is worth being mindful that compensation can also be reduced by up to 25% if an employee unreasonably breaches the ACAS Code.