When deciding what compensation a successful claimant can receive in an employment tribunal section 207A of the Trade Union and Labour Relations Consolidated Act 1992 allows for compensation to be increased (or decreased) by up to 25% if a party has failed to follow a Code of Practice issued by ACAS which applies in the case. The main Code of Practice is the Code of Practice on Disciplinary and Grievance Procedures.
In Ijejiaku v British Institute of Technology Ltd (2020) the EAT considered whether an employee who had been automatically unfairly dismissed because of having made a whistleblowing disclosure can be awarded an ACAS uplift. The short answer on the particular facts of the case was no, but the decision is worth looking a little closer at.
The British Institute of Technology Ltd is a London based higher education provider, and Mr Ijeakiaku was a lecturer in law for the company. There was a history of previous disclosures but that is not relevant to the case. On 12 July 2017 Mr Ijeakiaku raised a concern with the college principal that he had been instructed to pass the tests of some students by the associate dean, even though there was evidence those students had acted dishonestly. This disclosure was found to be a protected disclosure by the employment tribunal. The very next day Mr Ijeakiaku was summarily dismissed from his employment.
The employer alleged that the reason for the dismissal was in fact a reduced need for lecturers following the termination of a client contract, but this was rejected by the tribunal – the reason for the dismissal was because the claimant had made made a protected disclosure (blew the whistle) and, therefore, his dismissal was automatically unfair (section 103 of the Employment Rights Act 1996). The decision in Ijejiaku concerns whether, upon making a finding of automatically unfair whistleblowing dismissal, an employment tribunal is empowered to increase the compensation by up to 25% for the failure of the employer to follow a fair process in line with the ACAS Code of Practice on Disciplinary and Grievance Procedures.
The initial employment tribunal clearly wanted to give the uplift but found it could not, the relevant section of the explains the decision:
The difficulty in this case is that the sole reason for dismissal was the protected disclosure. That protected disclosure could never be a ground for possible disciplinary action. In those circumstances, there were not (nor could there fairly be) disciplinary proceedings against the Claimant to which the Code could apply.
The Tribunal considered it unjust that the ACAS Code is drafted in a way which appears not to apply to an automatically unfair dismissal such as this. The Tribunal did not feel able to broaden the Code’s application to include a dismissal without any misconduct but solely for making a protected disclosure as it considered that this would be an unwarranted gloss and expansion on the words of the Code. With some reluctance, the Tribunal concluded that there should be no ACAS uplift. If we had been able to make an ACAS uplift, we would have awarded 25% given the Respondent’s total failure to follow any procedure and flagrant disregard of basic fairness.”
The EAT had no difficulty upholding the tribunal’s dismissal. Relying on the earlier EAT decision in Holmes this was not a case that relied upon an allegation of culpability upon the claimant and so the ACAS Code had no application insofar as as the discipline section was concerned. I see no basis for criticising the decision of the EAT here. Ijejiaku is not however authority for the proposition that a whistleblowing dismissal can never have an ACAS uplift, much would depend on the precise circumstances. the issue is not the type of claim but whether there are issues of culpability (so, for example, a person who was dismissed for blowing the whistle but where the reason for dismissal was related to conduct – such as how the disclosure was made (press, on social media etc) – then there would, I think, remain a possibility that an uplift was appropriate.
Why no Whistleblowing Code?
However, the initial employment tribunal were, I think, right to point to the unfairness this regime generates for employee’s. For trade union representatives it can sometimes be all too easy to pin this type of unfairness upon the government of the day but in this case this is inaccurate. The right to uplift is found in section 207A of the Trade Union and Labour Relations (Consolidated) Act 1992 and refers to a “claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies”. It does not expressly specify there can only be one applicable Code of Practice, there are more than one – the Code on flexible working requests is one such question.
It would be an interesting question if an employee who successfully made an automatically unfair dismissal for flexible working (section 104c of the Employment Rights Act 1996) could rely on a breach of that Code to seek a 25% uplift, I think there is a good possibility they could).
The real problem with addressing the unfairness is, as I have covered before, that ACAS have the authority to influence good employment practice by implementing other Codes (such as redundancy, whistleblowing, discrimination) but have for many years elected not to do so instead relying on advice that are not formal Codes. Had there been a whistleblowing Code the injustice the tribunal identified could have been avoided. Perhaps it is time for the unions, through the TUC to begin to press ACAS to be more interventionist in how they shape effective management of personnel matters in the UK. The likely increase in redundancy claims may present jst the opportunity for ACAS to reflect on whether the way they have acted is really advancing their statutory functions as well as it could be.
Grievance to the rescue
However, while the EAT upheld the finding of the first tier tribunal on the inapplicability to many whistleblowing cases it did also provide some relief to whistleblowers. The ACAS Code of Practice on Disciplinary and Grievance Procedures defines a grievance as ” ‘concern, problem or complaint’ concerning a matter for which the employers owes a duty to the employee. On that basis it found the claimant’s complaint the day before his dismissal was a grievance and that this therefore engaged the possibility of an uplift for failing to follow ACAS’ grievance guidance and the case has been remitted to consider whether that award should be made.
Given the employer on the facts of the ET responded to the grievance not be holding a meeting with a right to be accompanied within five day but just sacked him I think it is safe to say the employer did not act in accordance with the Code.
Where a dismissal relates to alleged conduct of the employee (normally conduct dismissals but occasionally some other substantial reason cases as well) then the ACAS Code will apply and an uplift can be awarded.
However, the important lesson when pleading employment tribunal cases is to ensure that where there is a complaint that the uplift is based on the a grievance failure where one is available, as they often will be in dismissal cases.
Aside from that, trade unions should also consider lobbying for a more meaningful range of workplace guidance from ACAS so that the semantical efforts of the EAT in this case are no longer necessary to provide an employee with the opportunity to secure an uplift where appropriate and provide a meaningful marker to employers that a failure to treat an employee fairly will have a penalty across all types of case rather than the narrow confines of those provided by ACAS at present.
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