EAT Upholds Legal Protection for Whistleblowers and Clarifies ACAS Code Uplift Provisions.

Citation: [2023] EAT 147
Judgment on

Introduction

In the case of SPI Spirits (UK) Limited & Anor v Vladislav Zabelin, the Employment Appeal Tribunal (EAT) delivered a judgment addressing several critical legal issues pertaining to whistleblowing, the application of ACAS Code uplift, and contractual limitations on compensatory awards. This article analyzes the legal principles applied in the case, linking them directly to the relevant parts of the summary provided.

Key Facts

Vladislav Zabelin, the claimant, was an employee of SPI Spirits (UK) Limited, the first respondent. He was dismissed by Yuri Shefler, the second respondent and the first respondent’s agent, after making protected disclosures about pay cuts and alleged misuse of the COVID-19 pandemic for company profit. Zabelin succeeded in his employment tribunal (ET) claim, with the tribunal finding that his dismissal was on the grounds of making these protected disclosures. The ET made a significant award for compensation for both detriment and unfair dismissal, which the respondents appealed.

The EAT considered several legal principles in its judgment:

Section 123(1) Employment Rights Act 1996 and Compensatory Awards

The EAT reconfirmed that compensatory awards should be exactly that: compensatory. An award should reflect the employee’s loss without leading to overcompensation. The case law supports this, establishing that any other circumstances which suggest full compensation would be unjust and inequitable may result in reduced awards.

Contractual Limitations and Section 203 Employment Rights Act 1996

The EAT explored the application of section 203, which voids any contractual clauses attempting to exclude or limit the provisions of the Employment Rights Act. The EAT held that clauses in an employment contract purporting to limit tribunal awards were not enforceable.

Uplifts Under Section 207A Trade Union and Labour Relations (Consolidation) Act 1992

The EAT maintained that an uplift on awards could be granted for non-compliance with the ACAS Code. The key distinction lies between disciplinary and grievance situations. The EAT concluded that both could be applied in whistleblowing cases depending on the circumstances ascertained at the time the concern was raised.

Individual Liability for Non-Compliance with ACAS Code

The EAT confirmed the principle established in Osipov that individuals responsible for an employer’s non-compliance with the ACAS Code can also have uplifts applied to awards against them.

Outcomes

The EAT dismissed the respondents’ appeal, holding as follows:

  1. Employment contracts cannot lawfully cap tribunal awards for whistleblowing claims. Such clauses are contrary to section 203 of the Employment Rights Act and unenforceable.
  2. The ACAS Code’s grievance procedures may apply to whistleblowing claims when the initial grievance relates to the matter at hand, dispelling the need for separate written complaints for expanded or closely related issues discussed during the grievance meeting.
  3. Uplifts under section 207A can be applied to awards against individuals, as well as employers, where the individual is responsible for the employer’s failure to comply with the ACAS Code.

Conclusion

The EAT’s decision in SPI Spirits (UK) Limited & Anor v Vladislav Zabelin reinforces the legal protection afforded to whistleblowers and clarifies the circumstances under which the ACAS Code’s uplift provisions apply. Central to the appeal’s dismissal was the reaffirmation that statutory rights cannot be contractually limited and that procedural fairness as stipulated in the ACAS Code extends to all facets of an employee’s claim, including when linked to a protected disclosure. Additionally, individuals can be held co-responsible along with the employer for procedural non-compliance, affirming the broad scope of the legislation designed to protect employees’ rights.