Procedural breaches of Acas Code are relevant to uplift for a dismissal that is wrongful but not unfair (Brown v Veolia ES (UK) Ltd)

Where a claimant succeeds in a wrongful dismissal claim but, in the unfair dismissal claim brought in the same proceedings, the tribunal finds that the dismissal was not unfair, any breaches of the Acas Code on Disciplinary and Grievance Procedures, consisting of procedural failings by the employer in its investigatory and disciplinary process, remain relevant to any uplift (for an unreasonable failure to comply with the Code) to the wrongful dismissal award that is made. The breaches of the Code exist independently of whether or not the tribunal finds the dismissal was procedurally unfair, and so can still properly be taken into account when considering the uplift application. In addition, there is a distinct penal (and thus non-compensatory) element in uplift awards so that failing to make such an award because it would be a ‘windfall’ is an error, according to the EAT.

Brown v Veolia ES (UK) Ltd (UKEAT/0041/20/JOJ)

What are the practical implications of this judgment?

This judgment makes two points that parties should note if they are dealing with an application for an uplift due to a failure to observe relevant provisions of an Acas Code of Practice:

• first, any breach of the Code of Practice on Disciplinary and Grievance Procedures exists independently of particular findings the tribunal makes for or against the claimant in relation to the heads of claim comprised in the claimant’s case. So, for example, where, as here, the tribunal was faced with a claim for unfair dismissal, in which it found against the claimant, and a wrongful dismissal claim, in which it found for the claimant, the procedural breaches of the Code of Practice in relation to the employer’s investigatory and disciplinary process could still properly be taken into account when considering an uplift application even though:
  • the only compensation award made to the claimant (to which the uplift would be applied) was in respect of the wrongful dismissal claim, and
  • those procedural breaches were not relevant to (ie did not contribute to) the finding that the claimant had been wrongfully dismissed (they were only potentially relevant to the unfair dismissal claim as they went to procedural fairness).
• secondly, it is accepted that an uplift award is in some senses a ‘windfall’ for the individual receiving it because there is a distinct penal (and thus non-compensatory) element to it.

Case details

• Court: Employment Appeal Tribunal
• Judge: Soole J
• Date of judgment: 7 July 2021

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