Maximum uplift awarded for breach of Acas Code

While the EAT noted that the tribunal had failed to correctly identify the specific breach of the Code, and criticised this aspect of the judgment, it held that there was no error of law in awarding the uplift and the ET was entitled to make the award. The EAT was satisfied with the tribunal’s finding that the dismissal process was a sham, and also found that the claimant’s grievance was handled in a similarly appalling manner. This further failure on the part of the respondent indicated that the ET was just and equitable in awarding the maximum uplift available to them of 25%.

The judgment itself contains a helpful reminder of the test set out in the Trade Union and Labour Relations (Consolidation) Act 1992, which clearly identifies the questions a tribunal should ask when considering whether to apply the Acas uplift, and therefore, the points employers should be mindful of when contemplating a dismissal. The questions include:

1. Is the claim one which raises a matter to which the Acas Code (the Code) applies?
2. Has there been a failure to comply with the Code in relation to that matter?
3. Was the failure to comply with the Code unreasonable?
4. Is it just and equitable to award an uplift because of the failure, and if so, by what percentage (up to 25%)?

This decision highlights the importance of using the correct process when terminating employment and ensuring that you are not opting to use the redundancy process simply because it is considered the ‘easier’ or less controversial option.