EAT Decision Upholds Uplifts for Sex Discrimination Claims

In a recent case, the Employment Appeal Tribunal (EAT) has upheld a judgment which applied an uplift to an injury to feelings award and aggravated damages for two Claimants.

In the original decision of Biggs and Stewart v Aethelbert Limited, Sir Benjamin Slade and Mr A Hamilton, the EAT found that following two female employees notifying their employer of their respective pregnancies, the employer “found their becoming pregnant at roughly the same time as highly inconvenient”, and “he thereafter decided to dispense with the claimants’ services and thus avoid the inconvenience of hiring temporary staff to stand in, in their absence”.

The awards were challenged on appeal, the Employment Appeal Tribunal decided that the imposition of a 25% uplift on awards of injury to feelings and aggravated damages, for failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, did not entail double-counting on the compensation amounts. The appeal was therefore dismissed.

This resulted in the very high awards for the Claimants being upheld.

The case sets out some key considerations regarding remedy calculations for these types of cases including;

• Whether uplifts for failure to follow the ACAS Code of Practice are just and equitable;
• How to establish an equitable percentage considering the seriousness or motivation of the breach of the ACAS Code;
• Whether the uplift is or could overlap with any other awards, and if so, what any appropriate adjustment is;
• Whether any award arrived at is disproportionate in absolute terms.

Whilst ACAS is not applicable in Northern Ireland, there is a similar Labour Relations Agency Code of Practice for Disciplinary and Grievance Procedures. Failure to follow this code can result in significant uplifts to awards in this jurisdiction.

The full decision can be accessed here.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. If you need any advice on any recruitment or other employment issues please do not hesitate to contact our Employment team.

---