Thread by @JasonBraier

1/ Slade & Ors v Biggs & Ors: A case worth reading just for the awful facts, but also with detailed analysis of s.207A TULRCA looking at double counting & proportionality + a new 4-stage test, with a little grossing up question tacked at the end
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ Ms Biggs & Ms Stewart were employed by a company operating Woodlands Castle & Maunsel House, Somerset venues used for weddings & other big events, both owned by eccentric baronet Sir Benjamin Slade.
(The below comes from his Wikipedia entry & shows his, erm, eccentricity).

3/ In 2017, both Cs became pregnant. The ET found Sir Benjamin found this highly inconvenient & decided to dispense with their services by engineering their departure by making their lives deliberately difficult to persuade them to resign.

4/ Among other things, the bad treatment included transferring the Cs' employment to a company without funds to pay them & suspending Ms S & dismissing her for gross misconduct, backdating the dismissal to the day before she gave birth to try to avoid maternity pay liability.

5/ That dismissal arose from a process in which Ms S had not been told of charges, not been offered a hearing, & been given no right of appeal. The ET found the charges trumped up & the suspension in late pregnancy motivated to take advantage of her vulnerability at the time.

6/ Ms S had been so concerned about the disciplinary process, she sought a meeting 2 days after giving birth. It was held with co-respondent Mr Hamilton, who then made discriminatory remarks about women with children returning to work. Ms B resigned also after not being paid SMP.

7/ In giving evidence to the ED, Sir Benjamin made a wide range of unsubstantiated lurid allegations about the Cs, which the ET found fanciful & prompted by his desire to throw dirt at them. The ET found Sir Benjamin arrogant & misogynistic when giving evidence.

8/ Unsurprisingly, the ET found claims by the Cs re unfair dismissal & discrimination on grounds of pregnancy/maternity made out, alongside a failure to consult claim re the TUPE transfer to the fundless company, as well as a small holiday pay claim.

9/ The ET decided to apply the maximum 25% uplift under s.207A TULR(C)A to the compensatory award, injury to feelings award & an aggravated damages award.

10/ The Rs challenged the uplift as double counting in re the injury to feelings & aggravated damages awards, & producing a too high overall figure in absolute terms. The double-counting challenge relied on the EAT decision in Base Childrenswear v Otshudi.

11/ In Base, the EAT considered there to be double-counting when an aggravated damages award was made for failure to respond to a grievance & then a s.207A uplift was given as a result of that same failure. The EAT found the base award should be reduced to remove doubling up.

12/ The Rs noted in particular that 1 element of the ET's reasons for the injury to feelings award was the ignoring of Ms B's grievance, suggesting there must therefore be overlap between that award & the s.207A uplift as in Base.

13/ The EAT disagreed, noting the injury resulted from a single course of conduct causing injury in its totality rather than through separable elements & the ET's list of matters giving injury wasn't an exhaustive one. Ignoring the grievance couldn't sensible be separated off.

14/ Likewise with Ms S, the disciplinary process failures didn't weigh heavily enough in the balance to suggest double-counting. The injury to feelings award resulted from the vindictiveness, spuriousness & timing of the process, whilst the uplift was to the lack of compliance.

15/ As regards the aggravated damages awards, the EAT noted that the reasons for their award bore no relation to matters considered under s.207A, & hence there was no basis for asserting double-counting there.

16/Obiter, the EAT noted that in this case the cynicism & maliciousness behind the process failures would, alone, have sufficed to justify a 25% uplift on punitive grounds, & marked its disapproval at requiring any rigorous defining of territory by the ET to avoid double-counting

17/ Moving on from double-counting to the absolute value of the uplift the EAT noted the case law (such as Chagger & Wardle) on the need to stand back to see whether the uplift is proportionate in monetary terms to the purely procedural wrongdoing to which it relates.

18/ The EAT considered this to fall within the 'very exceptional cases' category in Wardle given the egregious way the procedural failures were connected to the attempts to engineer the Cs' departures as an act of discrimination, & that it wasn't disproportionate.

19/ The EAT also observed that Wardle was a case under the old regime in which a 50% uplift could be made, & that the reduction in maximum to 25% rendered disproportionality arguments more muted.

20/ Griffiths J proposed a 4-stage test to be applied by ETs in considering uplifts, in order to ensure against double-counting & to ensure proportionality of uplifts. Within that test, the Griffiths J sought to ensure EAT restraint in s.207A appeals.

21/ The EAT moved on to consider a separate question about whether it was correct for the ET to gross up injury to feelings & aggravated damages awards (i.e. whether the ET correctly found them to be taxable under s.401 ITEPA).

22/ The EAT noted that s.401 applies to payments "directly or indirectly in consideration or in consequence of, or otherwise in connection with" termination of employment - a phrase which could hardly be broader.

23/ Given that here the ET had found expressly that all the ill-treatment was in connection with the Cs' termination of employment, it fell within the scope of s.401 & was thus taxable, and therefore the ET was right to gross up the injury to feelings & aggravated damages awards.

24/ Finally, it may be that there are readers who have read this thread & are wondering about using the venues for their wedding or big event. It seems from this report, that weddings there could be dreamlike in more ways than one!
dailymail.co.uk/news/article-9…