Rentplus UK Limited v Susan Coulson

For an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, the applicability of the Acas Code depends on the substance of the matter, rather than the label attached to the dismissal. A purported redundancy process cannot avoid the Code where the employer's concerns in substance concern the employee's conduct or performance.

A process which is predetermined and conducted in bad faith is not compliant with the Acas Code. Where the tribunal finds that the procedure was a total sham, it may infer a total, unreasonable failure to comply and award the maximum 25% uplift if that is just and equitable. Brief reasons do not disclose an error of law if the judgment, read fairly as a whole, shows that the correct statutory test was applied.

The claimant was employed as the respondent's Director of Partnerships. The Employment Tribunal at Exeter held that her dismissal, presented as a redundancy following a reorganisation, was unfair. It found that the decision to remove her had been taken much earlier and that the consultation and grievance processes were shams. It awarded a 25% Acas uplift on compensation for unfair dismissal.

The respondent appealed, contending that the Acas Code could not apply where redundancy and sex discrimination were respectively the asserted and found reasons for dismissal. It also contended that the tribunal had not adequately identified the Code breaches supporting the maximum uplift. The central issue was whether the tribunal had permissibly applied section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 despite its brief reasons.

1. Appeal dismissed. Read fairly as a whole, the Employment Tribunal's judgment showed that it had found the dismissal and grievance processes to be total shams. Dismissal was predetermined and nothing the claimant said could affect the result.

2. Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 requires consideration of whether the claim concerns a matter to which the Acas Code applies, whether there was non-compliance in relation to that matter, whether the non-compliance was unreasonable, and whether an uplift is just and equitable. The applicability of the Code is a matter of substance, not the formal category assigned to the dismissal.

3. A disciplinary situation exists where the employer considers that potential misconduct or poor performance requires action. Actual misconduct or inadequate performance is unnecessary. Thus an employer cannot avoid the Code by presenting concerns about conduct or performance as redundancy or another dismissal reason. A finding of direct sex discrimination also does not preclude the Code's application: discrimination may be a material cause without being the sole cause.

4. A procedure ostensibly complying with the Code but pursued in bad faith is not compliant. Where the outcome is predetermined and the employee's representations will not be considered, the employee receives none of the Code's procedural protections. The tribunal was entitled to treat that as a total and unreasonable failure to comply. Its description of the failure as egregious showed that it regarded the breach as more than merely unreasonable.

5. Although the tribunal should generally identify the relevant Code failures more fully, its sparse reasoning was sufficient on these exceptional facts. Its finding of a sham process supported the conclusion that every material protection in the Code had been denied. A 25% uplift was therefore within its discretion. Alternatively, the sham handling of the claimant's grievance independently supported the same result.

• Employment Appeal Tribunal: appeal dismissed; the 25% Acas uplift awarded by the Employment Tribunal was upheld ([2022] EAT 81).
• Employment Tribunal, Exeter: held the dismissal unfair and awarded a 25% uplift for failure to comply with the Acas Code. Liability judgment sent to the parties on 27 August 2020; remaining remedy issues were determined on 20 November 2020.