Labour & European Law Review Weekly Issue 290 11 October 2012
The law says that tribunals can, in certain cases, increase an award of compensation if the employer has failed to abide by a relevant code of practice. In Local Government Yorkshire and Humber v Shah, the Employment Appeal Tribunal (EAT) held that they can only do so if the recipient is an employee as opposed to a worker.
Ms Shah was an experienced project manager working for the Bradford and Airedale Primary Care Trust (PCT). In July 2009, she was seconded for three years to the post of project director of a campaign funded by the government called Get Connected, set up to tackle extremism in the Muslim community.
After working for the project for a couple of weeks, Ms Shah became uncomfortable with the level of expenses being claimed by the chairperson of the panel overseeing the Get Connected project, Mrs Arshad-Mather. She even considered returning to the PCT but was persuaded to stay on.
In November 2009, she expressed concerns about the propriety of expenses being claimed by another consultant as well as Mrs Arshad-Mather. This time it was suggested that she might want to consider leaving the secondment a year early in return for £10,000.
In April 2010, she resigned and reported her concerns to the West Yorkshire police. She lodged a claim for unfair dismissal and also claimed that she had been disadvantaged because she had made a protected disclosure.
Holding that Ms Shah was a worker and not an employee, the tribunal decided that Local Government Yorkshire and Humber had subjected her to a disadvantage (or detriment) in a number of ways. These included failing to investigate her concerns adequately; ending the secondment agreement early; and giving her work to Mrs Arshad-Mather when she went on garden leave.
It decided that, given the effect on Ms Shah’s life, both at the time she was subjected to the detriment and subsequently, it was just and equitable to award her £25,000 for future loss and injury to feelings. It then added a 25 per cent mark up because of the employer's non-compliance with the Acas Code of Practice, which it was allowed to do under sections 207A(1) and (2) of the Trade Union and Labour Relations Consolidation Act (TULRCA).
Local Government Yorkshire and Humber appealed to the EAT with regard to the compensation and the uplift.
Section 207A(2) of TULRCA states that if a relevant code of practice applies to proceedings on a particular list and if the employer has unreasonably failed to comply with the code, then the tribunal may “if it considers just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%”.
The EAT held that the tribunal was entitled, on the evidence, to come to the conclusion it had in terms of the award for future loss and compensation for injury to feelings.
However, as far as the uplift was concerned, it said that although uplifts are available to both employees and workers in other cases of remedies for discrimination, “employment law does not always follow a logical course” and, for whatever reason, section 207A only applied to employees, not workers.
As the tribunal had found that Ms Shah was a worker, not an employee, she could not therefore benefit from the uplift.
This slip of the statutory draughtsman’s pen is frustrating but the EAT is right. Many claims are affected including discrimination claims and several specific trade union protections. Although it is no reason to throw away the ACAS Code for those claims, it nevertheless underlines the fact that employees remain more protected in the UK than ordinary workers. There is no real prospect of the coalition government addressing this issue either as it is currently far more concerned with removing rights.