Duhoe v Support Services Group Ltd

An Employment Tribunal must give reasons which show how it reached its conclusion on a claimed uplift. Under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, the statutory disciplinary and grievance Code cannot support an uplift for an unfair dismissal found to be by reason of redundancy where the Code excludes redundancy dismissals. A holiday-pay claim may nevertheless concern a grievance to which the Code applies.

Where both costs and preparation-time orders are sought, Rule 75(3) permits applications for each. The Tribunal may determine entitlement to both, but may make only one order. It must determine a live costs application or explain why it has not done so.

The Claimant succeeded before the Bristol Employment Tribunal in claims for unfair dismissal, holiday pay and written reasons for dismissal. The Tribunal awarded compensation and a preparation-time order, but declined an uplift under section 207A and did not determine the Claimant’s earlier application for legal costs.

The Claimant appealed those two matters. The Respondent, then in creditors’ voluntary liquidation, did not participate. The central issues were whether the reasons for refusing an uplift were adequate, whether an uplift could in principle arise, and how the Tribunal should deal with competing applications for costs and a preparation-time order.

1. Appeal allowed and remitted. The Employment Judge’s brief statement declining an uplift was not Meek-compliant. It did not enable the reader to understand how the conclusion had been reached. The issue therefore required remission unless, on the law, the uplift claim could not succeed.

2. The unfair-dismissal claim could not found an uplift. The Tribunal had definitively found that the dismissal was for redundancy because no work was available. The ACAS Code of Practice on Disciplinary and Grievance Procedures excludes dismissals for redundancy, and the historic grievances were not sufficiently connected with that dismissal.

3. The holiday-pay claim was different. It concerned an unresolved grievance about holiday pay and was therefore a matter to which the Code applied. The Employment Judge had not made findings directed to compliance with the Code or the reasonableness of any non-compliance. The remission must decide whether there was non-compliance, whether it was unreasonable, and whether an increase of up to 25 per cent was just and equitable under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.

4. The outstanding costs application was properly before the Tribunal and had to be determined, or its non-determination explained. Under Rule 75(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a party may seek both legal costs and preparation time where representation changed during proceedings. The Tribunal may decide entitlement to each but must select only one order. The preparation-time order was set aside solely to permit that choice on remission.

• Employment Appeal Tribunal: Appeal allowed. The refusal of an uplift and the failure to determine the costs application were set aside and remitted.
• Employment Tribunal, Bristol: Judgment dated 17 September 2013 upheld claims for unfair dismissal, holiday pay and failure to provide written reasons for dismissal. It awarded compensation, costs described as a preparation-time order, and no section 207A uplift.