In this case, the EAT sent a case back to a new tribunal to reconsider the extent to which the respondents had failed to comply with the Acas Code of Practice on disciplinary and grievance procedures (the Acas Code), among other matters.
Facts
Ms B brought successful complaints of harassment, victimisation and constructive unfair dismissal. The tribunal upheld 12 complaints of sexual harassment and three of harassment relating to age. Her victimisation complaint succeeded as the tribunal found she was suspended on "trumped up" misconduct allegations and had her quarterly bonus withheld.
Mr A, who supported Ms B with her harassment complaints, succeeded in his claims of victimisation, again in respect of being suspended on trumped up misconduct allegations and having his quarterly bonus withheld. He also succeeded in his constructive unfair dismissal complaint.
At a later remedy hearing, the employment tribunal made basic awards and small compensatory awards for unfair dismissal, as well as awarding compensation for the harassment and victimisation claims, together with injury to feelings and interest. Mr A received £29,000 and Ms B £90,000. The claimants were unsuccessful in arguing that the awards should be uplifted because of an unreasonable failure by the respondents to comply with the Acas Code. The employment tribunal found there had been a broad degree of compliance with the Acas Code.
The claimants appealed the awards to the EAT on a number of aspects including:
- The Acas Code uplift
- The periods when Mr A was not sufficiently fit to work so could not mitigate his loss
- Whether Ms B should receive compensation for personal injury and, if so, how much.
In respect of the Acas Code uplift appeal, the EAT held that the tribunal had failed to take into account its own previous findings of fact:
- Ms B's first grievance, which outlined her substantive complaint of harassment, was not taken seriously: there was no meeting with her, and no investigation with witnesses (including Mr A and others whom Ms B had suggested); when individuals provided further information they were not interviewed, and further investigation did not take place. The tribunal found that "no-one responded to her grievance in any way".
- The tribunal had found that both claimants were suspended on trumped up allegations of misconduct and remained suspended when these allegations were found to be untrue following an investigation. Suspension was not therefore as brief as possible as required by the Acas Code.
The fact that the employer had dealt with Ms B's second grievance and Mr A's grievance in a broadly compliant manner did not mean that there was overall compliance.
The EAT also held that there were errors by the tribunal in its approach to medical evidence in relation to claims by both claimants for loss of remuneration and damages for personal injury. In particular, the tribunal had decided that the two acts of victimisation caused Mr A some anxiety affecting his ability to work for 4 to 6 weeks after his employment ended. However, there was medical evidence that Mr A's GP was actively encouraging him to look for work in March and April 2019, which was two to three months later.
In respect of Ms B's claim for personal injury, the EAT found that the tribunal had made an error when considering whether her mental ill-health in the relevant period was solely or mainly attributable to the discriminatory treatment. While there was no expert evidence available, the tribunal had failed to engage with Ms B's GP records which showed a deterioration of her mental health in the immediate aftermath of the suspension and the medical evidence supporting the development of depression and anxiety in the relevant period. It had also failed to engage with whether Ms B's mental ill-health was entirely caused by existing and longstanding PTSD. The tribunal should have assessed whether the discriminatory treatment, or parts of it, had contributed to this deterioration of Ms B's mental health, whether it had exacerbated the effects of her PTSD, or whether she was vulnerable and had been tipped over by cumulative treatment.
The case was remitted to a new tribunal for a consideration of these matters on the levels of the awards.
What does this mean for employers?
This case is a reminder that broad compliance with the Acas Code is not sufficient when trying to defeat arguments that an uplift should be applied. The tribunal will analyse compliance against each paragraph of the Acas Code in deciding whether a party has unreasonably failed to comply with it. The case is also a reminder that, in accordance with the Acas Code, any suspension should be as brief as possible.
