The EAT’s decision in Cadogan Hotel Partners Ltd v Ozog highlights not only that some tribunals have failed to observe a Court of Appeal ruling that injury to feelings awards should be uplifted by 10%, but also that an uplift for an unreasonable failure to follow the Acas Code cannot apply where the other party has failed to meet one of the Code’s requirements.

After upholding Ms Ozog’s (O) claims of sex discrimination and harassment, an employment tribunal awarded £10,000 for injury to feelings and uplifted the award by 25% to reflect the employer’s unreasonable failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures, i.e. a failure to deal with O’s oral grievances. The EAT upheld the employer’s appeal that the injury to feelings award was too high and the 25% uplift should not apply because the Acas Code requires grievances to be lodged in writing.

Where injury to feelings was concerned, the tribunal had not applied the uplift to the guidelines in Vento v Chief Constable of West Yorkshire Police [subsequently amended by Da’Bell v National Society for Prevention of Cruelty to Children] in that any awards made after 1 April 2013 should increase by 10%, following the Court of Appeal’s ruling in Simmons v Castle 2012 EWCA Civ 1039. As to the award itself, the tribunal had failed to focus on the actual injury suffered by O. Had it done so, it would have been bound, by its own findings of fact, i.e. 'mild' sexual harassment in one incident that made O feel uncomfortable and one that made her feel very uncomfortable, to have categorised this case as not within the middle Vento band, but the lower. Therefore, EAT substituted an award of £6,600.

As for the Acas Code uplift, the Code clearly requires grievances to be put in writing. The tribunal’s oral judgment given at the end of the Hearing held that O had not made any written grievances.  The finding in the written judgment that the resignation letter satisfied the requirement for a written grievance was an impermissible addition. Therefore the provisions of the Acas Code were not engaged and the 25% uplift would be quashed.

The EAT’s ruling confirms that the Vento bands for injury to feelings are now as follows:

– The lower band – for less serious cases, such as where the act of discrimination is an isolated, or one off, occurrence – is between £660 and £6,600.

– The middle band – for cases which are more serious but do not merit coming within the top band – is between £6,600 and £19,800

– The top band – for the most serious cases such as where there has been a lengthy campaign of harassment – is between £19,800 and £33,000.

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