1. Section 207A of the 1992 Act reads, so far as material, as follows:

"(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.

(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that —

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

(3) …

(4) In subsections (2) and (3), "relevant Code of Practice" means a Code of Practice issued under this Chapter which relates exclusively or primarily to procedure for the resolution of disputes.

(5)-(9) …"

The Appellant's claim in these proceedings falls within the jurisdictions specified in Schedule A2. The Codes of Practice "issued under this chapter" (being chapter III of Part IV of the Act) include Codes of Practice issued by ACAS "containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations": see section 199 (1).

1. The relevant Code of Practice for our purposes is ACAS Code of Practice no. 1, entitled "Disciplinary and Grievance Procedures". The version current at the relevant time was issued in 2009, though there is a more recent version issued in 2015. The section dealing with Grievances has the sub-heading "Keys to Handling Grievances in the Workplace". Its detailed terms are then set out under seven headings, the first five of which are:

– Let the employer know the nature of the grievance

– Hold a meeting with the employee to discuss the grievance

– Allow the employee to be accompanied at the meeting

– Decide on appropriate action

– Allow the employee to take the grievance further it not resolved.

I need not set out the text under those headings, but it is important to note that it is specified expressly that each stage should take place "without unreasonable delay": see paras. 32, 38, 39-40 and 43.

1. It was the Appellant's pleaded case in the ET that the matters of which she complained had been raised by her with Rentokil under its grievance procedure but that her grievances had not been considered either promptly or properly. In the agreed List of Issues scheduled to a case management order dated 8 December 2011, covering the first two of her three claims, the forty acts complained of included the following:

"A3.8 The manner in which the Respondent handled the Claimant's grievance submitted on 7 February 2011 …

…

A4.1 Unreasonable delays in dealing with the Claimant's grievance

…

A4.10 Dismissal of the Claimant's grievance dated 7 February 2011 …

A4.11 Dismissal of the Claimant's grievance dated 27 June 2011."

At the further case management hearing on 8 October 2012, to which I have already referred, the following further complaints were recorded:

"2) Outcome of my grievance 2012

3) Unreasonable delays with my grievance 2012

4) Grievance 2012

…

10) The Respondent's handling of my appeal (2011), the procedure itself, what was done, what was not considered, and the findings and outcome of the appeal.

11) The Respondent's refusal to allow adjustments to the appeal hearing 2011.

12) The Respondent's delays in dealing with my appeal dated 22nd August 2011.

...

14) The Respondent's scheduling of an appeal hearing on the 15th September 2011.

15) The Respondent's scheduling of an appeal hearing on 22nd September 2011.

16) The Respondent's interference with witnesses that I sought to call upon at my appeal hearing of 11th October 2011.

17) Circumstances surrounding the appeal hearing of 11th October 2011.

…

20) Respondent's dismissal of my grievance dated 7th February 2011.

21) Respondent's dismissal of my grievance appeal dated 27th June 2011."

The "appeal hearings" referred to are grievance appeals.

1. At that directions hearing Vinci, as I have already noted, conceded the entirety of the Appellant's claims: the Tribunal's order recites that "at the outset of the hearing the Respondent accepted liability for all extant claims comprised within these three sets of proceedings". As also noted, that concession reflected concessions already made on the internal appeal.

1. It was the Appellant's case before the ET that Vinci's acceptance of the pleaded claims identified above necessarily meant that it accepted that there had been a breach of the ACAS Code of Practice no. 1. That was not, however, accepted by Vinci. Ms Harris recorded in her closing submissions that the Appellant accepted that Rentokil:

"- invited her to a meeting to discuss the grievance;

• offered her the right to be accompanied, and indeed permitted her to be accompanied by her husband (even though this is not in accordance with R's policy);

• made a decision in respect of her grievance;

• offered her the right to appeal the outcome of her grievance;

• agreed to any request for an extension of time in which to lodge an appeal;

• invited her to a meeting to discuss her appeal; and

• made a decision in respect of her appeal."

It will be seen that those bullets broadly reflected the headings from the ACAS Code. On the basis of those matters Ms Harris submitted that there was no breach of the Code.

1. In the section of its Reasons headed "The Facts" the Tribunal made fairly detailed findings about the primary facts concerning the handling of the Appellant's grievances. It did not reach conclusions about the validity of each of her pleaded complaints, but it did express the view, at the end of para. 16, that:

"It is clear from our consideration of these complaints that a number of the incidents complained of and their effects have been exaggerated by Ms De Souza whose answers under cross examination in relation to a number of matters have indicated that any discrimination was at a low level. The employers did not in our view subject Ms De Souza to an extended campaign of discrimination, but their handling of the issues which faced her in her employment was poor and on the Respondent's admission amounted to discrimination."

Likewise, in considering her claim for injury to feelings, it said, at para. 30

"… that both the incidents themselves and their impact have been exaggerated by Ms De Souza. Her account when under cross examination did not support her assertion that there had been a sustained campaign of discrimination against her and her answers in some respects suggested that any discrimination in relation to a number of incidents complained of had been at a low level, often remedied at the first opportunity and on other occasions made the subject of apologies."

1. The claim for a section 207A uplift was dealt with at para. 31 of the Reasons, as follows:

"Neither do we award any uplift for a breach of the ACAS code. The Code undoubtedly applied to the grievance procedures and whilst a number of complaints about those procedures have been accepted as acts of discrimination by the Respondent, a consideration of the evidence shows that the Code was not in fact breached in handling the grievances at the centre of this case. Meetings were held to discuss the grievance, the right to be accompanied was acknowledged and indeed Mr O'Cathail attended, the decision was made in respect of the grievance and then the necessary appeal procedures were implemented. The only possible breach we can see was in relation to the appeal which Ms de Souza sought to bring against the dismissal of her 2008 grievance but as this was so long after the event we do not criticise the employer for its response. It is within our discretion to decline to make any uplift and we so decline.⁴"

The essential element in that reasoning is the finding that there was no breach of the Code. It seems in fact that the Tribunal adopted the approach advanced in Ms Harris's submissions: see para. 40 above.

1. At para. 60 of her Notice of Appeal to the EAT the Appellant challenged that reasoning. Her point was that the concessions made by Vinci at the case management hearing necessarily involved a concession that the ACAS Code had been breached and that it was accordingly not open to the ET to find otherwise.

1. At a hearing under rule 3 (10) of the Employment Appeal Tribunal Rules 1993 (as amended) HH Judge Richardson allowed that ground of appeal to proceed. At para. 23 of his judgment he said:

"The second arguable point relates to the refusal by the Employment Tribunal to uplift the award under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. It does appear to have been accepted that there were substantial delays in dealing with grievances and appeals. These, on the face of it, will have involved breaches of the Code, which requires employers to deal with matters promptly and without unreasonable delay. Paragraph 31 appears to find that there was only one breach. I am doubtful whether this is sustainable in view of the admission of liability. I have found myself wondering whether the Employment Tribunal disregarded breaches before the transfer. If it did, that would arguably be an error of law."

1. On the full appeal Judge Serota dealt with this issue in two parts of his judgment. At paras. 24-26 he said:

"24. The Claimant has not gone beyond pointing to a series of matters said to be unfair; the Claimant has not demonstrated any further breaches of the ACAS Code by reference to any relevant provision or beyond those considered by the Employment Tribunal.

1. I regard it as convenient to dispose of this ground now before turning to deal with the more difficult point of the effect of Simmons v Castle.

1. The Employment Tribunal, at paragraphs 31 and 32 which I have referred to earlier, has disposed of the issue of the ACAS uplift on the basis of the relevant facts that it found and in the exercise of its discretion. The decision is one to which the Employment Tribunal was entitled to come on the facts, and in the absence of some evidence of other relevant breaches, the decision of the Employment Tribunal cannot properly be challenged. I therefore dismiss this ground of appeal.

At para. 32 he said:

"I have already dismissed this claim, but I agree with the submissions made by Mr Cordrey that the Employment Tribunal in its Judgment of 26 November 2013 had correctly directed itself as to the law at paragraph 25 … and at paragraphs 31 and 32 that it had held the appropriate meeting without unreasonable delay. The Remedy Judgment found that the meeting had been arranged within weeks; see paragraph 12. There is no appeal against this finding and it was open to the Employment Tribunal to conclude as it did that the fact the Respondent had admitted some delay did not prevent the Employment Tribunal finding that there had been no unreasonable delays."

(The reference to para. 32 of the ET's decision is a slip: the only relevant paragraph is para. 31.)⁵

1. The Appellant's pleaded grounds of appeal are very general, but she can be treated as pursing the same argument as Judge Richardson allowed to proceed in the EAT. In my view that argument is well-founded. My reasons are as follows.

1. I start with the position as regards delay, since this is the clearest. The Appellant had explicitly alleged unreasonable delay in the handling of her grievances: see items A4.1, (1), (3) and (12) quoted at para. 38 above. Vinci had expressly accepted those allegations. In the light of that acceptance it seems to me that the Tribunal was obliged to find non-compliance. No attempt – rightly – was made by Mr Cordrey to argue that a concession that Rentokil was guilty of "unreasonable delay" for the purpose of liability could mean something different in the context of the ACAS uplift.

1. The reason that the Tribunal did not apply Vinci's concessions appears to have been that it believed that it was sufficient, as Ms Harris had submitted, that Rentokil had formally taken each of the steps identified in the Code (see para. 40 above). That is not correct. As Judge Richardson observed, unreasonable delay is itself a breach of an express requirement of the Code (see para. 42 above).

1. Mr Cordrey drew our attention to the ET's findings of fact, and in particular to paras. 12 and 16 of the Reasons, where it considered the Appellant's allegations of delay on the part of Rentokil in the conduct of the two grievance procedures. He submitted that its findings clearly showed that there had been no unreasonable delay; Judge Serota accepted the same submission at para. 32 of his judgment.

1. Mr Cordrey is right that the findings of primary fact in paras. 12 and 16 of the Reasons show that both grievances had rather complicated histories. Part of the time that it took to deal with them was due to adjournments requested by the Appellant, some of which were due to her objections to the persons initially tasked by Rentokil with their conduct. There is some ammunition in those findings for a case that Rentokil did not delay unreasonably, and in fact, as we have seen, the Tribunal was quite critical of the Appellant's account of how she was treated. However, no explicit conclusion is drawn by the Tribunal to the effect that there was no unreasonable delay either in the course of its narrative or, as we have seen, when it comes to deal with the uplift claim at para. 31 of the Reasons; indeed in relation to the second grievance the Tribunal says, at para. 16, that "it is accepted that there was a delay which was unacceptable". But, even if it had purported to make such a finding, for the reasons already given I do not believe that it was open to it to do so in view of the terms of Vinci's concession.

1. Mr O'Cathail submitted that the re-visiting by the ET of the history of the grievance procedures involved re-opening the issues of liability which had been conceded. I do not agree. For the purpose both of assessing her compensation and deciding whether to award an uplift under section 207A, and if so at what level, it was necessary for the Tribunal to understand how serious the admitted breaches were, and it was entirely legitimate for it to hear evidence directed to that question, including cross-examination, and to make findings. No doubt considerations of proportionality might affect how far it was necessary to go into detail, but that was a matter for its case-management assessment. What went wrong here was not that the Tribunal examined the Appellant's complaint at all but that it reached a conclusion, i.e. that there had been no non-compliance with the ACAS Code, that was inconsistent with Vinci's concessions. It would have been open to the Tribunal in principle, in the exercise of its discretion under the section, to conclude that although there had been non-compliance with the Code the breaches in question were not very serious and accordingly only an uplift at the lower end of the available range was appropriate (or indeed to award no uplift at all); but its explicit reasoning at para. 31 is straightforwardly that there was no breach, and accordingly it did not purport to exercise any discretion.

1. On the face of it, therefore, the section 207A issue will have to be remitted to the ET. We are constrained by the decision of this Court in [Jafri v Lincoln College ]()[2014] EWCA Civ 449, [2014] ICR 920; and this case is perhaps a good example of why I concurred in that decision only with express regret. We could only decide the issue ourselves if (a) it was clear beyond argument what uplift the Tribunal should have made or (b) the parties agreed to our doing so. As to (a), it is clear that the Tribunal could reasonably have awarded less than the maximum 25%, and it is not for us to judge where in the available range the correct figure lies. As to (b), Mr O'Cathail was not prepared to agree to that course. I should note that there would be no need for a remittal if the Respondents were willing to concede the maximum uplift; but they have not so far given any such indication.

1. It would be highly preferable for the remittal to be to the same tribunal. We were told that Judge Charlton has retired. I do not know whether this definitively means that the tribunal cannot be reconstituted; but the correct order seems to me to be that the case be remitted for consideration by the same tribunal if possible but otherwise by a tribunal appointed by the Regional Employment Judge. If in the end the issue has to be decided by a differently-constituted tribunal, I would hope that it can deal with it in a manner proportionate to the limited nature of the issue and the amounts at stake. For example, I can as at present advised see no reason why any relevant findings of fact of the previous tribunal should be re-opened.

1. I have so far considered only the question of unreasonable delay. It is arguable that some or all of the other complaints admitted by Vinci, set out at para. 38 above, also constituted breaches of the Code. Some of those complaints are about alleged procedural unfairnesses and others are about the actual outcome. Although the mere fact that a grievance has been (as a tribunal subsequently finds) procedurally mishandled or wrongly rejected does not constitute a breach of the Code, there might nevertheless be such a breach if the conduct or decision in question were found to show that the grievance was not considered in good faith. But it is unnecessary for us to decide whether that is so as regards any of the complaints in question. That will be a matter for the consideration of the ET on remittal.

1. It is extremely unfortunate that this case should have to go back before an ET so long after the event, particularly if (as remains to be seen) it has to be considered by a different tribunal. I must emphasise, because Mr O'Cathail appeared initially to understand differently, that the Tribunal will be concerned on remittal only with the section 207A uplift. The amount at stake is thus, at most, 25% of £13,200 (i.e. £3,400), plus interest. It is in both parties' interests to avoid a further hearing and I strongly urge them to consider compromise. In particular, the Appellant should appreciate that she should not necessarily expect the full 25% uplift, or anything like it, in view of the Tribunal's findings quoted at para. 41 above.

1. I would allow the appeal on the Simmons v Castle issue and adjust the award as stated at para. 35 above. I would also allow the appeal on the issue of whether the Appellant was entitled to an uplift under section 207A of the 1992 Act, and remit that issue to be determined by the Employment Tribunal in accordance with paras. 51-53 above.

Lord Justice Lindblom:

1. I agree with both judgments.

Lord Justice Gross:

1. I also agree and add only a very few words of my own on the Simmons v Castle uplift.

1. First, I would pay tribute to the logical and cogent argument advanced by Mr Cordrey, despite being satisfied that it cannot prevail.

1. Secondly and in a nutshell, there is much developing convergence between Courts and Tribunals, so that different legal regimes for comparable claims should be avoided, at least unless there is good reason to the contrary. Here, the language of s.124(6) of the Equality Act 2010 requires the amount of compensation awarded by the Employment Tribunal to "correspond" to the amount which could be awarded by the County Court. In the light of the statutory language and as explained by Underhill LJ, it would be difficult, as a matter of principle, to justify a consistent 10% difference between awards in the County Court and those in the Employment Tribunal.

1. Thirdly, although as a matter of history the Simmons v Castle uplift was conceived to address the provisions in Sir Rupert Jackson's reforms entailing the loss of the right of successful claimants proceeding under a CFA to recover from defendants the amount of the success fee payable to their solicitors and of their ATE premiums, the uplift was introduced on a universal basis: it was not confined to those claimants whose right to recover success fees and the like had been affected by the Jackson reforms. Accordingly, like Underhill LJ, I do not think that the rationale of the Jackson reforms furnishes a good reason for not applying the uplift to tribunal claimants.

1. Fourthly, a decision as to the application of the Simmons v Castle uplift plainly falls within the remit of this Court, in particular given the need to bring to an end the divergence of views seen in the judgments of the Employment Appeal Tribunal.

Notes