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Employment tribunal procedure – ACAS uplifts

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Employers and employees must follow the ACAS Code of Practice in relation to disciplinaries and dismissals. If either party fails to follow the Code, the Tribunal can increase or decrease compensation by up to 25%. In Wardle v Credit Agricole Corporate and Investment Bank, the Court of Appeal said that a Tribunal should only fix the rate of uplift once it has considered how much the uplift would equate to financially, to ensure that it is not disproportionate. A Tribunal can ‘reconsider’ any judgment where it is necessary in the interests of justice. A Tribunal can do this of its own initiative, at the request of the Employment Appeal Tribunal or if one of the parties makes an application for reconsideration within 14 days of a judgment. The Employment Appeal Tribunal has recently looked at a case where an employer asked a judge to reconsider a case ‘of its own initiative’ in circumstances where they were out of time to make the application themselves.

In Banerjee v Royal Bank of Canada, the employee won his claim for whistleblowing unfair dismissal. The Tribunal found that the employer had failed to follow the ACAS Code and ordered the maximum 25% uplift. This was contrary to the Wardle approach because the percentage uplift was fixed before the remedy hearing which would calculate the employee’s compensation. This was especially important in this case because the employee was a highly paid City trader and the 25% uplift equated to £261,000. The employer wanted this decision to be reconsidered but, by the time of the remedy hearing, the time limit for making an application had expired. The employer argued that the Tribunal could reconsider the decision of its own initiative, telling the Tribunal ‘that’s what you should do’. The Tribunal agreed. It decided that the parties should calculate how much compensation was owed to the employee and then address the ACAS uplift afterwards. The employee appealed, saying that the employer had essentially got around the expired time limit by planting the reconsideration idea, which meant any reconsideration would not be on the Tribunal’s ‘own initiative’.

The EAT disagreed. Although the issue of reconsideration was discussed at the remedy hearing, the employer did not actually make an application. The Tribunal could still decide itself whether to reconsider a judgment. The fact that the employer had reminded the judge about his ability to reconsider the judgment, and suggest that they should do this, did not undermine the Tribunal’s ability to act on its own initiative. A (failed) application by one party to reconsider a judgment might stop a Tribunal being able to take that step ‘on its own initiative’, but that had not happened here because no application had been made. An advocate can remind a Tribunal about its own powers without undermining their ability to act independently.

This is a win for the employer in both form and context. The power to reconsider judgments is rarely used by Tribunals. It is comforting to know that parties are not prevented from reminding a judge of the rules and their overriding duty to deal with matters fairly and justly. There is a sage reminder for employers though about the importance of making any relevant Tribunal applications within the appropriate time limits. This judgment is also a helpful aide-memoire about ACAS uplifts, which should be considered at the remedy rather than liability stage.

This article is written as a general guide and believed correct at the date of publication.  If you need further or more specific information relating to your situation, please get in touch with us.

AUTHOR Alison Gair

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