Uplifts for Failure to Comply with Acas Code

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.]

Can uplifts for failure to comply with the Acas Code be made in favour of workers as well as employees?

No, says the EAT in Local Government Yorkshire v Khan.

The claimant was a project manager seconded to Local Government Yorkshire and Humber (an employers' association) from Bradford and Airedale PCT. She was dismissed in circumstances giving rise to a claim for compensation for detriment by reason of having made a PIDA protected disclosure.

The compensation awarded by the employment tribunal included future loss, injury to feelings and a 25% mark up by reason of the employer's non-compliance with the Acas Code of Practice. The employer appealed to the EAT on the issue of remedy. The EAT refused to disturb the tribunal's award for future loss and the amount of compensation for injury to feelings.

But the interesting point is the tribunal's decision to uplift the award for breach of the Acas Code. It had been conceded in the main proceedings that the claimant was a worker under the extended definition of worker for whistle blowing purposes in Section 43K of the Employment Rights Act 1996. However, the source of the rules on uplift of compensation for failure to follow the Acas Code is Sections 207A (1) and (2) of the Trade Union and Labour Relations (Consolidation) Act 1992. This allows uplift of an award to "the employee" by up to 25%. For theses purposes, Section 295 of TURL(C)A defines employee more narrowly than worker, being an individual who has entered into or works under a contract of employment. Therefore, the short answer, said the EAT, was that only employees, as opposed to workers, can take advantage of the remedy offered by Section 207A

This seems an anomalous result. As the EAT said: "Employment law does not always follow a logical course".