Philip Rush v Wilts & Dorset Bus Company Ltd

An uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 depends on an unreasonable failure to comply with the relevant ACAS Code. Where no particular breach is alleged and none is apparent, a brief tribunal finding of no non-compliance can give adequate reasons and justify refusing an uplift.

An additional award under section 38(3) of the Employment Act 2002 requires the employer to have been in breach of its duty under section 1 of the Employment Rights Act 1996 when proceedings began. A complaint about the contents of an existing statement is not a failure to provide one.

The claimant appealed from the Southampton Employment Tribunal’s decision, sent to the parties on 26 September 2023. The tribunal dismissed his race discrimination and harassment claims. It allowed limited claims for unlawful deductions from wages and recorded an award of £202.52.

At a rule 3(10) hearing, the appeal was permitted to proceed on five grounds. They concerned an ACAS Code uplift, an alleged failure to provide written particulars, overtime, enhanced Saturday pay, and holiday-pay calculation. A proposed further ground concerning an alleged oral finding on racial harassment was not pursued after the Employment Judge’s comments.

The central question was whether the tribunal had made an error of law in resolving those claims and in giving its reasons.

1. Appeal dismissed. The Employment Appeal Tribunal identified no error of law in the Employment Tribunal’s determination of any of the five grounds.

2. Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 permits an uplift only where there has been an unreasonable failure to comply with the relevant ACAS Code. The tribunal had considered the claimant’s requests for an uplift and found no non-compliance. Although its reasoning was brief and expressed differently in relation to the separate wage claims, it adequately explained the result. No particular breach had been identified, and the material showed that the respondent had convened a grievance meeting, permitted accompaniment, communicated the outcome, and notified the claimant of an appeal right. The tribunal was not required to follow the suggested guidelines in Rentplus UK Ltd v Coulson [2022] ICR 1313.

3. Section 38(3) of the Employment Act 2002 requires a relevant award and a subsisting breach, when the claim began, of the duty to provide a written statement under section 1 of the Employment Rights Act 1996. The claimant accepted that he received a statement when his employment transferred to the respondent in 2014. His complaint concerned its terms, not its absence. The statutory condition was therefore not met.

4. The tribunal had considered and accepted the respondent’s evidence analysing the alleged underpayments. Its acceptance of that evidence, including the limited unpaid overtime, disclosed no legal error. The tribunal was also entitled to confine its consideration to claims advanced in the claimant’s schedule of loss, list of issues and evidence. It could not be criticised for calculating holiday pay using the daily hours figure put forward by the claimant himself.

5. The appeal jurisdiction did not permit the EAT to substitute a different factual assessment merely because the claimant disagreed with the tribunal’s findings.

• Employment Appeal Tribunal — dismissed the claimant’s appeal: [2025] EAT 119.
• Southampton Employment Tribunal — after a hearing on 2–4 August 2023, dismissed the race discrimination and harassment claims and allowed limited unlawful-deduction claims. Its decision was sent to the parties on 26 September 2023.