Local Government Yorkshire And Humber v Shah

An uplift for an employer’s unreasonable failure to comply with the ACAS Code under section 207A is available only to an employee. It is unavailable to a worker, even where the worker succeeds in a whistleblowing detriment claim.

Future loss may extend beyond a fixed-term engagement where evidence and industrial knowledge support a loss-of-chance assessment. The tribunal may make a practical prediction despite unavoidable uncertainty. An appellate tribunal should not substitute its own assessment merely because the issue involves judgment.

An injury-to-feelings award is compensatory, not punitive. A serious and continuing impact of whistleblowing detriment may justify an award within the upper Vento band.

The claimant was seconded by her NHS employer to the appellant to manage a publicly funded project. The Employment Tribunal found that she was a worker, rather than an employee, and upheld her claim that she had suffered detriments for making protected disclosures concerning financial probity and governance.

At remedy, the Tribunal awarded compensation for future loss and injury to feelings. It also increased compensation by 25 per cent for non-compliance with the ACAS Code under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.

The appellant challenged the future-loss award, the injury-to-feelings award and the statutory uplift. The central issue was whether a worker who succeeded in a protected-disclosure detriment claim could obtain the section 207A uplift.

1. Appeal allowed in part. The appeal succeeded solely against the 25 per cent uplift. Section 207A(1) applies to proceedings relating to a claim by an employee, and section 207A(2) permits an increase only to an award made to the employee. The claimant was found to be a worker, not an employee. She could therefore not receive an uplift under section 207A, notwithstanding that whistleblowing detriment is treated as a form of discrimination and the appellant was minded to accept an obligation to comply with the ACAS Code.

2. The Employment Tribunal was entitled to award loss extending beyond the expiry of the fixed-term secondment. It permissibly found a one-third chance that, with the additional experience and skills she would have gained, the claimant would have obtained later employment. Future loss had to be anchored in evidence, but uncertainty did not prevent the Tribunal from making a practical assessment. The PCT redundancy was not a novus actus interveniens.

3. The Appeal Tribunal applied the cautious appellate approach in Software 2000 Ltd v Andrews [2007] IRLR 568 and Gover v Propertycare Ltd [2006] EWCA Civ 286. An assessment involving impression and judgment is primarily for the Employment Tribunal, which could also use its industrial knowledge.

4. The £25,000 injury-to-feelings award was not perverse. The Tribunal had found severe, ongoing distress caused by the failure to investigate concerns central to the claimant’s professional integrity. The award was compensatory and could properly fall within the upper band described in Vento [2002] EWCA Civ 1871.

5. The order was varied by removing the section 207A uplift. The remaining liability and remedy findings were upheld.

• Employment Appeal Tribunal: Allowed the employer’s appeal only as to the section 207A uplift, and varied the remedy order accordingly.
• Employment Tribunal (Leeds): In judgments sent on 26 October 2011, dismissed unfair dismissal, upheld the protected-disclosure detriment claim, and awarded £79,925.12 including a 25 per cent uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.