Did applying the maximum 25% 'Acas uplift' to injury to feelings and aggravated damages awards amount to double counting?
No, held the EAT in Slade and ors v Biggs.
This was a case where the tribunal had found that the departure of the Claimants had been engineered after they had notified their employer that they were pregnant.
In this case, applying the 25% 'Acas uplift' on the injury to feelings and aggravated damages awards did not amount to double counting. However, the EAT also held that the possibility of double counting should be considered as part of a four-stage test when considering the effect of an employer's failure to comply with a relevant Code under s207A Trade Union and Labour Relations (Consolidation) Act 1992. The four-stage test which tribunals might choose to apply posed the following questions:
- Is the case such as to make it just and equitable to award any ACAS uplift?
- If so, what does the tribunal consider a just and equitable percentage?
- Does the uplift overlap with other awards, such as injury to feelings; and, if so, what is the appropriate adjustment in order to avoid double-counting?
- Applying a final sense-check, is the uplift disproportionate in absolute terms and, if so, what further adjustment needs to be made.
Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.
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