The Employment Appeal Tribunal (“EAT”) has decided in Local Government Yorkshire v Khan that uplifts for failure to comply with the ACAS Code of Practice cannot be made in favour of workers as well as employees.
Kate Fretten, Employment partner, says "The Claimant was a project manager seconded to Local Government Yorkshire and Humber (an employers' association) from Bradford and Airedale Primary Care Trust. She was dismissed in circumstances giving rise to a claim for compensation for detriment by reason of having made a protected disclosure in accordance with whistle blowing legislation."
The compensation awarded by the employment tribunal included future loss, injury to feelings and a 25% mark up by reason of the employer's non-compliance with the ACAS Code of Practice. The employer appealed to the EAT on the issue of remedy. The EAT refused to disturb the tribunal's award for future loss and the amount of compensation for injury to feelings.
The interesting point is the tribunal's decision to uplift the award for breach of the Acas Code of Practice. It had been conceded in the main proceedings that the Claimant was a worker under the extended definition of worker for whistle blowing purposes. However, the source of the rules on uplift of compensation for failure to follow the ACAS Code of Practice allows uplift of an award to "the employee" by up to 25%. Therefore, the short answer, said the EAT, was that only employees, as opposed to workers, can take advantage of the uplift for failure to comply with the ACAS Code of Practice.
This seems an anomalous result as workers can ‘blow the whistle’, but cannot take advantage of the uplift in the same way employees can under the same legislation. As the EAT said: "Employment law does not always follow a logical course."
Get in touch if you need more information on this topic. You should find the other articles in October's employment newsletter of interest."
For a free initial meeting please call 01202 499255 and Kate or Paul will be happy to discuss any questions you may have.