SPI Spirits (UK) Limited & Anor v Vladislav Zabelin

The Employment Appeal Tribunal dismissed the respondents' appeal against the employment tribunal's remedy decision in a whistleblowing case. Key legal principles applied were: (i) the compensatory award under section 123 Employment Rights Act 1996 must be just and equitable having regard to loss sustained and should not be limited by private contractual provisions which in substance seek to cap tribunal awards, because section 203 ERA voids any provision purporting to limit statutory remedies; and (ii) an uplift under section 207A Trade Union and Labour Relations (Consolidation) Act 1992 for failure to follow the ACAS Code may apply where the grievance provisions or, in some circumstances, the disciplinary provisions of the Code are engaged, and may be applied to awards made against an individual respondent where that individual was responsible for the employer's failure to comply with the Code.

This appeal concerned remedies after an employment tribunal found that the respondent had been subjected to detrimental treatment and dismissed because he had made protected disclosures (whistleblowing). The tribunal awarded substantial compensation for detriment (jointly and severally against both respondents) and a further award for automatic unfair dismissal against the employer. The respondents challenged two aspects of the remedy decision: (i) that the tribunal failed to limit awards to a contractual net figure of 270,000, and (ii) that the tribunal erred in applying a 20% ACAS Code uplift (section 207A TULRCA) including against the individual respondent and on the basis that a written grievance had not been raised in respect of the protected disclosures.

The EAT summarised the issues as: whether contractual clauses could be taken into account so as to limit tribunal compensation; whether the grievance provisions of the ACAS Code require a written grievance to be engaged; and whether an uplift under section 207A can be applied to awards against individual respondents. The tribunal had relied on section 203 ERA to reject any contractual cap on tribunal awards and also construed the contractual clauses as creating a contractual post-termination payment potentially subject to set-off rather than a limitation on tribunal awards. The EAT agreed that, even if the clauses were interpreted as the respondents suggested, using them to achieve a cap on tribunal awards would be impermissible under section 203.

On the ACAS Code issues, the EAT held that paragraph 32 of the Code ordinarily requires a written grievance to engage the formal grievance procedure, and that Cadogan Hotel Partners Ltd v Ozog was correctly decided on that point. However, the tribunal had not erred in finding that the claimants 4 June email triggered the grievance procedure and that the matters expanded at the subsequent grievance meeting were closely related in kind so as not to require a fresh written grievance. The EAT also confirmed that where an individual respondent was responsible for the employer's failure to comply with the Code, uplift under section 207A could be applied to awards against that individual (International Petroleum Ltd v Osipov followed).

Accordingly the EAT dismissed the appeal: the tribunal did not err in refusing to apply a contractual cap, in applying the 20% uplift under section 207A, or in applying that uplift against the individual where he was found responsible for the procedural failures.

Appeal dismissed. The Employment Appeal Tribunal held that (1) the employment tribunal did not err in refusing to limit compensatory awards to 270,000 because either the contractual clauses did not have the effect alleged or, if they did, reliance on them to cap tribunal awards would be void under section 203 Employment Rights Act 1996; (2) the tribunal was entitled to apply a 20% uplift under section 207A TULRCA for failure to follow the ACAS Code as the grievance procedure was engaged by the claimant's written email and closely related matters raised at the grievance meeting; and (3) an uplift under section 207A may be applied to awards against an individual respondent where that individual was responsible for the employer's failure to comply with the Code.

Appeal to the Employment Appeal Tribunal from the remedy decision of the Employment Tribunal (London Central) following liability findings that the claimant had been subjected to detriment and dismissed for making protected disclosures. No separate neutral citation for the Employment Tribunal decisions is given in the judgment; this decision is reported as [2023] EAT 147.