In this long running case which started in 2012, the Claimant was awarded a substantial award after she was found to have been unfairly dismissed and subject to discrimination. She appealed the ET’s decisions to (1) apply only a 2.5% ACAS uplift to the award under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (2) decline to gross up certain elements of the award for tax.

The EAT dismissed the appeal on both grounds. First, the ET was entitled to reconsider the appropriate percentage in the light of the new total of the award. The ET had correctly stated and applied the law governing the ACAS uplift, its decision was not perverse, and nor had it given inadequate reasons for it. In relation to grossing up, the ET had properly applied the principle in British Transport Commission v Gourley [1956] AC 185 that the Claimant should be put in the same position, so far as can be done by an award of money, as they would have been had breaches of duty not happened. There were a variety of heads of compensation in what had been a complex case, and a lack of clarity as to the proper application of chapter 3 of part 6 of the Income Tax (Earnings and Pensions) Act 2003 to aspects of the award. In the circumstances of this particular case, the ET’s pragmatic solution, acknowledging the Gourley principle applied but not at that stage grossing up disputed areas of the award, and instead recording an indemnity by the Respondent together with the ability for the Claimant to apply further to the ET should that prove necessary, did not disclose any error of law.