Where an employer (or employee) is found by the Employment Tribunal (ET) to have unreasonably failed to follow the ACAS Code, adjustments can be made to the compensation due that would otherwise be payable. This adjustment can be up to 25%. In unfair dismissal cases, that would be an adjustment of up to 25% of the compensatory award.
In the case of Rentplus UK v Coulson, it was held that the Clamant was unfairly dismissed and an uplift of 25% was applied to the compensation. The case reached the Employment Appeal Tribunal (EAT) who considered the circumstances in which the ACAS Code applies and the extent to which an ET is required to explain the basis on which it determines the amount of any uplift.
The EAT concluded that the ET had done the right thing in applying the maximum 25% ACAS uplift on the basis that the procedure adopted by the employer was a total sham and the grievance was handled badly.
The EAT gave some useful guidance for considering the appropriate ACAS uplift as follows:
- Is the claim one which raises a matter to which the ACAS Code applies?
- Has there been a failure to comply with the ACAS Code in relation to that matter?
- Was the failure to comply with the ACAS Code unreasonable?
- Is it just and equitable to award an uplift because of the failure to comply with the ACAS Code and, if so, by what percentage, up to 25%?
Although the EAT criticised the way that the ET had explained their decision to apply the uplift, the decision itself was correct.
21st June 2022