The claimants in this case notified their employer, the appellant in this case, that they were pregnant. The respondent found that the pregnancies were inconvenient and then instigated action to try and force the claimants out of their employment. The Tribunal at first instance found in favour of the claimants relating to discrimination on grounds of pregnancy, constructive unfair dismissal and a failure to comply with Transfer of Undertakings (Protection of Employment) Regulations 2006.  Both claimants were awarded compensation relating to the claims brought.  The issue arising is that they were given uplifts of 25% relating to the loss of statutory rights vis-à-vis unfair dismissal under Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992.   There was also 25% uplifts relating to the injury to feelings and aggravated damage awards relating to the discrimination.  The aggravated damages awards were also ‘grossed up’ on the basis that they were taxable.   

The respondents appealed the decision on the basis of the remedy that had been awarded.   They stated that there was ‘double counting’ when it came to the 25% uplift relating to loss of statutory rights and 25% uplift for injury to feelings and aggravated damages.  They also appealed the decision to ‘gross up’ the aggravated damages award. 

On double counting the EAT held that there was no obvious overlap between the two uplifts.   It was held that any overlap between the uplift relating to the statutory rights and the uplift relating to the injury to feelings and aggravated damages was insignificant meaning that there was no reason to affect the judgment made by the court below. The EAT did provide some useful guidance on when an uplift should be given under Section 207A of the 1992 Act.  They stated that the test is whether it is ‘just and equitable’, what did the Tribunal consider a just and equitable percentage, was there any overlap with other general awards made and if so should there be a reduction and overall was the overall sum and uplift disproportionate in the circumstances.  As a result and in applying these factors the respondent’s appeal was dismissed and the uplifts applied by the Tribunal remained. 

Practical Lessons

This decision provides some useful guidance when it comes to making an uplift. Whilst Section 207A of the 1992 legislation does not extend to Northern Ireland, the examination relating to what is just and equitable, the idea of overlap and disproportionality of the overall sum are good barometers upon which to examine how uplifts should be made generally.   The action faced by the claimants in this case was egregious and it was only ‘just’ that an uplift would be made in the circumstances.  
https://www.gov.uk/employment-appeal-tribunal-decisions/1-sir-benjamin-slade-baronet-2-andrew-hamilton-v-1-melissa-biggs-2-roxanne-stewart-3-aethelbert-ltd-ea-2019-000687-vp-previously-ukeat-slash-0296-slash-19-slash-vp