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£1.6 million award upheld in the Employment Appeal Tribunal

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The Employment Appeal Tribunal has upheld an award of over £1.6 million in SPI Spirits (UK) Limited & Shefler v Zabelin [2023] EAT 147

Following a claimant’s successful whistleblowing claim, the employment tribunal awarded damages against his former employer and its ultimate owner. The damages included an Acas uplift of over £150,000 before grossing up for tax.

The employer and its ultimate owner appealed both the overall figure and the Acas uplift. The EAT rejected all three grounds of appeal.

First, it rejected the argument that the employment tribunal had failed, as part of its discretion to award what is “just and equitable”, to take into account an agreement between the claimant and the employer which (the appellants alleged) capped any net damages at £270,000. The EAT did not accept the appellants’ interpretation of the agreement, but in any event found that the tribunal’s refusal to apply the cap was correct, in light of the statutory restrictions on contracting out employment rights.

Second, it held that the Acas Code of Practice on Disciplinary and Grievance Procedures applied, entitling the claimant to his full Acas uplift. The EAT found that for the grievance section of the Code to be engaged, the grievance needed to be in writing and that the claimant’s protected disclosures were not in writing. However, in the present case, it was sufficient that the oral protected disclosures were made in a meeting about a grievance that had been put in writing. The disciplinary section of the Code was also engaged, the EAT rejecting a suggestion in Ikejiaku v British Institute of Technology Limited UEKAT/0243/19 that the disciplinary section could not be relied upon in cases in which the sole reason for dismissal was a protected disclosure.

Third, it found that an Acas uplift could be applied in awards against co-workers and agents, rejecting the owner’s case that an uplift can only be applied to an award against an employer.

Nathan Roberts acted for the successful claimant as sole counsel at the liability and remedy hearings in the employment tribunal, instructed by Mishcon de Reya. He was led by Sean Jones KC in the EAT resisting the appeal.

Read the EAT judgment here