Does The Employment Tribunal Have The Power To Reduce The Acas Uplift?

Yes, held the EAT in Sheikholeslami v The University of Edinburgh.

The claimant was dismissed following an extended period of ill health. An Employment Tribunal found that her dismissal was unfair and she also succeeded in claims of disability discrimination and victimisation. She was initially awarded a 25% uplift for failure to follow the Acas code. 25% is the maximum uplift award available. Later and following the overturning of earlier remedy decisions, Professor Sheikholelami’s compensation was recalculated at a much higher figure, more than £1.7m. At this point an ET decided to reduce the Acas uplift to 2.5%, a much smaller award.

The claimant appealed the reduction in the Acas uplift. She also appealed a separate issueon grossing up for tax.

The Employment Appeal Tribunal (EAT) rejected the appeal in relation to the Acas uplift.

When the earlier remedy decision was partly set aside and sent back to the tribunal thetribunal was also entitled to take another look at the uplift percentage even though this wasnot a point in the appeal.

The reason the tribunal is entitled to revisit the uplift is because the size of an award isrelevant to the fair percentage of the uplift. A smaller percentage on a larger sum is stillcapable of being a fair outcome. The tribunal had correctly approached the issue and gaveadequate reasons for its decision. The EAT chose not to disturb that decision.

The EAT also upheld the tribunal’s handling of the tax. The University promise to cover any tax liability was recorded by the tribunal which enables the client to return to the tribunal again at a later date if the University does not honour this arrangement. It was therefore not necessary to gross up the award. Given that the tax liability on the award was uncertain the tribunal adopted a sensible practical approach.