Wardle v Credit Agricole Corporate and Investment Bank

For a compensation award subject to a statutory percentage uplift for failure to follow dismissal procedures, the uplift is applied to the loss wholly referable to the dismissal. The percentage is an evaluative judgment. Relevant considerations include the seriousness and manner of the breach, the size of the award and any reduction in the award following appellate review. A reduction in the underlying award may justify revising an uplift previously fixed by the tribunal or Employment Appeal Tribunal. Serious and cavalier breaches justified a 15% uplift on the relevant loss.

Mr Wardle challenged the Employment Appeal Tribunal’s decisions in UKEAT/0535/09 and UKEAT/0536/09 concerning compensation following his dismissal by Credit Agricole. The Employment Tribunal had awarded a 50% increase for failure to follow the statutory procedures. The EAT substituted 10%.

In its main judgment of 11 May 2011, the Court of Appeal held that the EAT was entitled to apply a 10% uplift, but indicated that the reduction in the overall award might require modification. The parties then agreed compensation of £192,361.67 before grossing up and applying any uplift, of which £124,177.87 represented loss wholly referable to the dismissal. The supplementary judgment concerned the appropriate percentage uplift.

Lord Justice Elias gave the supplementary judgment. Lady Justice Smith and the Master of the Rolls agreed.

1. Outcome. The appropriate uplift was fixed at 15%, replacing the 10% figure previously substituted by the Employment Appeal Tribunal.
2. Scope of the uplift. The agreed compensation before grossing up and uplift was £192,361.67. The percentage uplift under section 31 of the Employment Act 2002 applied to the £124,177.87 representing loss wholly referable to the dismissal.
3. Assessment. The court took account of the considerations identified in its main judgment, including the size of the award. The Employment Tribunal had properly found that the employer’s breaches of the statutory procedures were serious and cavalier. Although the EAT had been entitled to select 10%, the reduction in the award following the main judgment made modification appropriate. A 15% uplift produced an increase of a little less than £19,000, with the parties left to calculate the precise figure.
4. Finality. Mr Wardle’s further written submissions sought to reopen conclusions reached in the main judgment. The court held that it could not reopen those conclusions in the supplementary judgment, and confined its decision to the outstanding issue of the uplift.

• Court of Appeal (Civil Division) — In this supplementary judgment, fixed the statutory uplift at 15% after reconsidering the effect of the reduced compensation award.
• Employment Appeal Tribunal — In UKEAT/0535/09 and UKEAT/0536/09, substituted a 10% uplift for the Employment Tribunal’s 50% increase.
• Employment Tribunal — Awarded a 50% increase for the employer’s failure to follow the statutory dismissal procedures.