Injury to feelings award increased by 15% for employer’s failure to comply with Acas Code
In Ms Olga Antonova v HF Trust Limited t/a Hft an Employment Tribunal has ordered an employer to pay over £14,000 to a former employee as compensation for unfair dismissal, wrongful dismissal, and subjecting the former employee to a detriment for making a protected disclosure. In this case, the Tribunal increased the compensation it awarded the claimant for injury to feelings by 15% on the basis that the respondent had made serious failures in relation to dealing with the claimant’s grievance.
The claimant was a Support Worker and looked after adults with learning difficulties in one of the supported living centres operated by the respondent. The claimant allegedly failed to follow risk assessments and safeguarding policies on three separate occasions – the claimant was suspended and the allegations were investigated by the respondent. The investigating officer concluded there was a case to answer in relation to two of the allegations and the claimant was invited to a disciplinary hearing. The claimant was dismissed for gross misconduct on the basis that her actions had posed a serious risk to the health and safety of the vulnerable adults the respondent cared for and created a safeguarding risk. The claimant appealed the decision - the decision to summarily dismiss was upheld.
During the claimant’s suspension, she raised concerns about the health and safety of one of the vulnerable adults at the centre she worked at. The claimant also raised concerns about her treatment at work and alleged that she was being treated less favourably because of her race. A senior manager met with the claimant to discuss her concerns informally. This meeting was held in a small room, lasted over four hours, and the claimant was not given any breaks. In this meeting, the senior manager was overbearing, critical of the claimant in relation to her disclosure about the vulnerable adult, and did not directly address the concerns the claimant had raised about her treatment at work which she felt was directly related to her race. The claimant was upset and emotional at various stages of this meeting.
The claimant raised a grievance about how she was treated in this meeting. The respondent was slow to deal with the claimant’s grievance and only appointed someone to hear the claimant’s grievance after she was dismissed for gross misconduct. The grievance outcome letter was sent to the claimant eight months after she raised her grievance – the claimant was not offered the right to appeal the outcome.
When determining remedy in this case, the Tribunal applied a 15% uplift to the claimant’s injury to feelings award which, including interest, increased the award by over £2,000. The Tribunal’s reasoning for applying this uplift was that the respondent had unreasonably failed to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures on the basis that it had unreasonably delayed arranging a formal hearing to hear the claimant’s grievance, unreasonably delayed sending the grievance outcome to the claimant, and had failed to provide the claimant with a right of appeal.
This case serves as a reminder to employers that, where an employee raises a grievance during disciplinary proceedings, and the grievance relates to the disciplinary, the grievance should not be delayed because of the ongoing disciplinary and, if appropriate, the matters should be dealt with concurrently. In these cases, it is advisable for employers to hear the grievance before the disciplinary.
The Tribunal has the power to increase compensation awarded to a claimant by up to 25% where it considers that an employer has unreasonably failed to follow the Acas Code.