A & Anor v C Limited & Ors

When deciding an uplift under section 207A, a tribunal must assess its earlier findings against the relevant requirements of the ACAS Code. A general conclusion that there was broad compliance requires a reasoned basis.

A claimant who has taken no steps to seek work may need to explain why that was reasonable. If ill health is said to prevent work, the tribunal must distinguish mitigation from causation. It must determine whether unlawful treatment materially caused or contributed to incapacity or psychiatric injury. It must address vulnerability, other material causes and, where harm is divisible, the compensable share. Expert medical evidence is helpful but is not invariably necessary.

The claimants appealed an Employment Tribunal remedy decision following successful claims arising from their employment with C Ltd. Mr A succeeded in victimisation and constructive unfair dismissal claims. Ms B succeeded in claims including harassment, victimisation and constructive unfair dismissal.

The remedy tribunal made awards for injury to feelings and limited loss of remuneration. It declined an ACAS Code uplift and made no award for personal injury. It treated a £1,500 profit bonus as annual rather than quarterly.

The appeal challenged the ACAS Code decision, mitigation and causation findings, the treatment of medical evidence, the refusal of personal-injury damages, calculation errors, and alleged reliance on the respondents’ written submissions.

1. Appeal allowed in part. The ACAS Code issue, specified compensation issues, and the calculation of lost remuneration were remitted to a differently constituted tribunal. The remaining remedy findings stood.
2. The tribunal gave no adequate explanation for finding a broad degree of compliance with the ACAS Code. Its liability findings potentially showed serious non-compliance in the handling of Ms B’s first substantive grievance and in suspending both claimants on trumped-up allegations, then continuing suspension after the conduct investigation had concluded. It must reconsider whether there were breaches and, if so, whether an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 is just and equitable.
3. There was no error in the tribunal’s general approach to mitigation. The undisputed fact that neither claimant sought any work could establish an initial case of unreasonable failure to mitigate. The tribunal then had to evaluate their explanations. If a claimant was fit for work, it could assess when reasonable job-searching should have begun and how long alternative work would probably have taken.
4. Where ill health is said to prevent work, the tribunal must separately determine causation. It must ask whether unlawful discrimination materially caused or contributed to incapacity and to psychiatric injury beyond injury to feelings. A pre-existing vulnerability is not a defence. Another material cause excludes compensation only for harm which is truly divisible; the tribunal must then assess the respondent’s share. Expert evidence is likely to assist but is not an absolute prerequisite.
5. For Ms B, the tribunal wrongly asked whether her ill health was solely or mainly attributable to the respondents. It failed to engage with evidence of anxiety and depression after suspension, the limited effect of the earlier disability finding, and possible exacerbation or divisible harm. Her loss-of-remuneration and personal-injury claims required fresh assessment. For Mr A, the refusal of personal-injury damages disclosed no material error, but the period during which he was unfit to seek work required reconsideration.
6. The tribunal also erred by treating the £1,500 profit bonus as annual when it was quarterly. Although portions of its reasoning closely reflected the respondents’ skeleton argument, the decision did not involve the wholesale copying condemned in Crinion, and this ground did not justify wider intervention.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted specified remedy issues to a differently constituted Employment Tribunal: [2025] EAT 165.
• Employment Tribunal: Following successful liability claims, made remedy awards, declined an ACAS Code uplift, limited loss-of-remuneration awards, and refused personal-injury damages. Its decision was varied only through the remittals ordered by the EAT.