By Jo Seery Professional Support Lawyer
Background
The claimants, A and B, resigned from C Limited in 2018 and subsequently brought claims for harassment, victimisation, and constructive dismissal. Both succeeded on multiple liability grounds at tribunal. The current appeal concerned the Employment Tribunal’s remedy decision, which the claimants challenged on a number of grounds, including a failure to apply an uplift for breaches of the ACAS Code of Practice on disciplinary and grievance procedures; the finding that the Claimants had not mitigated their loss and that they were not entitled to an award for personal injury.
Key Issues
The ACAS Code of Practice applies to disciplinary and grievance procedures (“the ACAS Code”). Paragraph 4 of the Code requires employers to deal with issues promptly, not unreasonably delay meetings or decisions and carry out necessary investigations to establish the facts of the case.
Failure to Apply ACAS Code Uplift
The EAT found that the tribunal had erred in concluding that there had been a “broad degree of compliance” with the ACAS Code as this was inconsistent with the tribunal’s findings on liability. In particular, the tribunal had found that neither Claimant was informed about an investigation report, its outcome and had remained suspended in the period after the report’s conclusion. Furthermore, witnesses proposed by both Claimants had not been interviewed nor had further documentation relating to one of the Claimants complaints been provided to the investigator. In essence, the tribunal had found that the misconduct allegations against the Claimants were “trumped up” and there were defects in the way the Claimants’ grievances were handled. The EAT therefore ordered fresh consideration of whether an uplift was warranted.
Mitigation
The Claimants appeal in relation to mitigation was on the basis that the tribunal had erred by considering whether the Claimants had not taken steps which it was reasonable for them to take when the burden was on the employer to establish that the Claimants had unreasonably failed to mitigate their loss. The EAT noted that in this case neither of the Claimants disputed that they had not taken any steps to look for work rather they contended that the reason they did not do so was because they were simply unfit for work at all. The EAT held that in light of these facts the tribunal was entitled to consider the Claimants explanations and had not applied the wrong approach to the burden of proof. However, the EAT considered that the tribunal had erred when assessing the periods of loss. In relation to Mr A the tribunal had failed to explain why it had found that he would reasonably have been able to start looking for work 4-6 weeks after his employment ended on 29 October 2018 (which would have been January 2019) when the medical evidence showed that he had been encouraged to look for work in March or April 2019.
In Ms B’s case, the tribunal had erroneously applied a “solely or mainly attributable” test when considering whether her mental ill health was attributable to the discrimination. The EAT confirmed that the correct approach was for the tribunal to assess whether the discriminatory treatment had contributed to a deterioration in her mental health or had exacerbated the effects of her latent PTSD.
Personal Injury Claims
The tribunal had dismissed both claimants’ claims for psychiatric injury, citing lack of expert evidence. While the EAT found this approach appropriate for Mr A, it concluded that Ms B’s claim required a full reassessment, in light of the medical evidence, which was that there had been a deterioration in her mental health and that Ms B had developed anxiety and depression in the relevant period.
Outcome
The EAT remitted several elements of the remedy decision to a fresh tribunal:
- Reconsideration of ACAS Code uplifts for both claimants.
- The correct period of loss of earnings for Mr A;
- Reassessment of Ms B’s compensation for both loss of earnings and psychiatric injury;
Why This Matters
This case is a reminder that remedy decisions should be scrutinised to check they are firmly rooted in prior liability findings in complex discrimination claims. This is particularly important when determining whether an uplift should be applied for failure to follow the ACAS Code of Practice on disciplinary and grievance procedures.
