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 EWCA Civ 545; LTL 11/5/2011, Court of Appeal - Simon Cheetham QC
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The court considered the principles that should inform an employment tribunal when it sought to exercise its discretion under the Employment Act 2002 s.31(3) to uplift an award to an employee for failure by an employer to comply with statutory procedures.
The appellant employee (W) and employer (C) each appealed against the calculation of compensation awarded to W for race discrimination, victimisation and unfair dismissal. C was a French bank and W had worked at its London branch. He applied for a promotion to Head of Risks Management, but the application failed and C appointed a French candidate. W lodged a claim of race discrimination and C subsequently dismissed him. The employment tribunal found that W had been unfairly dismissed, the dismissal being an act of victimisation by C, as W's discrimination complaint had been the principal reason for his dismissal. Further, the tribunal found that there had been a discriminatory failure to promote W. The tribunal assessed compensation for W's loss of earnings. Taking into account some additional heads of loss, including £15,000 for injury to feelings, the award was assessed at almost £180,000. The tribunal found that C had fundamentally failed to comply with the statutory dismissal procedure set out in the Employment Act 2002 Sch.2 when dismissing W, and therefore increased the total amount of compensation by the maximum uplift allowed of 50 percent pursuant to the statutory uplift provisions of s.31(3). After grossing up, the total award was almost £375,000. Both parties appealed aspects of the tribunal's findings to the Employment Appeal Tribunal. In respect of the statutory uplift, whilst the EAT accepted that the tribunal had been entitled to conclude that the maximum uplift was called for, it found that the tribunal had erred in failing to have regard to the very significant size of the award overall. It therefore reduced the uplift to 10 per cent, on the basis that otherwise the size of the award would be disproportionate to the breach. The EAT found that the tribunal had been entitled to apply the uplift to the whole of the award, given the substantial link between the discriminatory refusal to promote and the dismissal. The issues raised on appeal in respect of the statutory uplift were (i) was it relevant to have regard to the size of the compensation award when exercising discretion to apply the uplift; (ii) was the tribunal entitled to conclude that the breaches of procedure merited the maximum uplift; (iii) did the tribunal apply the uplift to the appropriate elements of compensation.
HELD: (1) The size of the award was a relevant factor that a tribunal should have regard to when considering whether to increase compensation under s.31(3), Abbey National Plc v Chagger (2009) EWCA Civ 1202, (2010) ICR 397 applied. (2) The intention behind s.31(3) was that a tribunal was enjoined to start at a 10 per cent uplift and it then had to consider whether it was just and equitable on the particular circumstances to increase that percentage. An increase to the maximum of 50 per cent should be very rare indeed and given only in the most egregious of cases. The fact that an employer had ignored procedures altogether would not justify an increase to the maximum although it would often justify some increase beyond 10 per cent (see paras 25, 26 of judgment). Once a tribunal had fixed on an appropriate uplift by focusing on the nature and gravity of the breach, only then should it consider how much that involved in money terms. It must not be disproportionate but there was no simple formula for determining that. However, the law set its face against sums that would not command the respect of the public and very large payments for procedural wrongdoings were at risk of doing that. It was relevant to have regard to the sums the courts were willing to award for injury to feelings and for aggravated damages. Save in very exceptional circumstances, most members of the public would view with some concern additional payments following an uplift for purely procedural failings which exceeded the maximum payable for injured feelings (see paras 27, 28). In the instant case, the breaches did not warrant an uplift of 50 per cent. Disregarding the size of the award, the appropriate uplift was in the region of 30 per cent. However, that percentage then had to be translated into money terms and reconsidered. Even an uplift of 30 per cent resulted in a figure that was outside the permissible range. Whilst the court might not have been inclined to reduce the figure quite as far as the EAT did, that figure of 10 per cent was not outside the range legitimately open to it given the particular award. The final uplift figure could be determined once the amount of compensation had been calculated. (3) The uplift had to relate to the unfair dismissal claim in respect of which the statutory procedures were infringed. The uplift could plainly not be applied to the injury to feelings award, or the loss resulting from the failure to promote C from the date promotion would have occurred until the dismissal itself. Further, following dismissal, the continuing loss resulting from the failure to promote could not be attributable to the dismissal itself; it still had its roots in the discriminatory act rather than the dismissal. The EAT ought to have applied the uplift only to the loss referrable to the act of dismissal itself (see paras 38-45).