The University of The Arts London v. Rule

An oral employment tribunal judgment may constitute an award even though some figures remain to be calculated from an agreed formula and are later included in written reasons.

A payment made after that judgment, in satisfaction of the judgment and without the claimant’s conscious acceptance as an interim payment, does not deprive the claimant of a statutory uplift. The principle in Arrow v Onley was confined to its materially different facts.

Where the legislation provides for an uplift on an award, the uplift applies to the whole award, including any grossing-up sum. Any unfairness may instead be addressed through the tribunal’s discretion over the percentage uplift or by an appropriate tax indemnity.

The claimant had succeeded before the Employment Tribunal on admitted claims of sexual-orientation and race discrimination. At a remedies hearing, the Tribunal specified many heads of compensation, gave a formula and periods for calculating the remaining heads, and awarded a 45 per cent uplift under section 31(3) of the Employment Act 2002.

The following day, while counsel were agreeing the outstanding figures, the appellant transferred the agreed compensation by CHAPS, excluding the uplift and without prior notice. The Tribunal nevertheless applied the uplift, giving credit for earlier interim payments. The appellant appealed, relying on Tim Arrow & Sons v Onley. The central issues were whether the oral judgment was already an award, whether the later transfer was an effective interim payment, and whether the uplift applied to the grossed-up total.

1. Appeal dismissed. The Employment Tribunal was entitled to apply the 45 per cent uplift.
2. The Tribunal’s oral judgment of 17 September 2009 was, or amounted to, an award. It conclusively determined specified heads of compensation and fixed the methodology and relevant periods for calculating the remaining heads. Rules 29 and 30 of the Employment Tribunal Rules contemplated that the figures could be inserted in the subsequent written judgment, including a table or description of the calculation.
3. Tim Arrow & Sons v Onley [2009] UKEAT 0527_08_0406 did not govern the case. That decision concerned compensation paid in full and accepted before the hearing, leaving nothing to award. The payment here was made after the oral judgment and in satisfaction of it. Even if the oral judgment had not technically been an award, it was a decision that an award would be made.
4. An interim payment capable of depriving a claimant of an uplift requires conscious acceptance. A unilateral and previously unknown CHAPS transfer, made immediately before the resumed hearing, could not qualify as an effective Arrow payment. Earlier interim payments, made and accepted on account, were properly credited.
5. The statutory uplift was required on the whole award, including the grossing-up figure. There was no mechanism for applying it only to selected compensatory heads. Any injustice could be addressed, where argued, by reducing the percentage under section 31(4) of the Employment Act 2002, or by a tax indemnity or other appropriate order. The issue had not been argued below and provided no ground for interference.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal’s application of the 45 per cent uplift was upheld.
• Employment Tribunal, London Central: in September 2009, awarded compensation following admitted discrimination claims. Written judgment was sent on 10 February 2010.