SPI Spirits (UK) Limited v Zabelin [2023] EAT 147

Appeal against a remedy decision which awarded the Claimant more than £1.6m in compensation. Appeal dismissed.

The Claimant was employed by the first Respondent. The second Respondent was found by the ET to be its agent. In a liability decision the ET found that, in a telephone conversation, he subjected the Claimant to detriment, and dismissed him, on the ground, or for the sole or principal reason, that the Claimant had made protected disclosures. Before the ET at the remedy hearing, the Respondents relied upon contractual clauses which, they contended, had the effect of limiting the amount of compensation that the claimant might receive upon dismissal to £270,000 net. While it was accepted that such clauses could not impose a legally-effective cap on the tribunal’s awards, it was contended that they had been freely negotiated, and were a relevant circumstance to be taken into account when deciding what amount of compensation it was just and equitable to award. In its subsequent remedy decision the ET made joint and several awards of compensation for detriment against both Respondents, as well as a further award against the first Respondent for unfair dismissal. The ET also uplifted its awards of compensation on the basis of failure by the first Respondent to follow the ACAS Code on Disciplinary and Grievance Procedures (2015). This appeal related to particular aspects of the remedy decision.

The EAT dismissed the appeal. First, the ET did not fail to consider the argument regarding the contractual clauses. In any event it was not in error in not upholding it. The clauses did not have the meaning for which the Respondents contended. Alternatively, if they did, then the outcome the Respondents sought to achieve in reliance upon them was in substance an unenforceable contractual cap on the ET’s awards. With regard to the uplift, it was correct that, for the grievance provisions of the Code to be engaged, a grievance needed to be put in writing. The Cadogan Hotel Partners Ltd v Ozog, UKEAT/0001/14, 15 May 2014 followed. But the tribunal was not in error in rejecting the contention that the procedure did not apply in this case on the basis that, when the written grievance was first raised, the Claimant had yet to raise it in circumstances that gave it the character of a protected disclosure, and only did so subsequently orally. The ET was entitled to conclude that the underlying matter remained the same. The power to award an uplift in any event arose on the basis that the discipline provisions of the Code applied in respect of the subject matter of the detriment and unfair-dismissal complaints. Where the employer dismisses or takes other action against an employee because, in substance, of what it regards as, or potentially as, culpable conduct, the discipline provisions of the Code will apply. The ET also did not err in applying the uplift to the award against the individual agent as well as those against the corporate employer, in circumstances where it had found that the individual concerned was responsible for the employer’s failure to comply with the Code.


Published: 11/01/2024 15:07

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