EAT finds remedial errors in harassment and victimisation case, remits awards for fresh consideration
The Employment Appeal Tribunal has partially quashed a remedy decision in A and B v C Ltd, sending key issues back to a differently constituted tribunal. The judgment identifies errors on ACAS Code uplift, medical causation and a bonus calculation.
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Key takeaway
The Employment Appeal Tribunal (EAT) has found that parts of a Nottingham employment tribunals remedy decision in A and B v C Ltd and others were flawed. His Honour Judge Auerbach identified errors in the tribunals approach to ACAS Code uplift, the handling of medical evidence and a basic calculation mistake about bonuses. The EAT has remitted those matters for fresh consideration, noting that the re-hearing should be before a differently constituted tribunal.
Background
The case concerns two former employees, Mr A and Ms B, who resigned in November 2018 after a period of suspension, grievances and alleged misconduct by colleagues and managers at C Ltd. The employment tribunal had upheld a number of Equality Act complaints: Ms B succeeded on multiple counts of sexual harassment, victimisation and constructive dismissal. Mr A succeeded in complaints of victimisation and constructive dismissal, having supported Ms B. Initial remedy awards included compensation for injury to feelings, loss of statutory rights and loss of earnings. The total awards were roughly 29,000 for Mr A and in excess of 90,000 for Ms B.
What the EAT found
Delivered on 12 November 2025, the EAT judgment identified several errors of principle in the remedy decision. The principal errors were:
- ACAS Code uplift. The tribunal concluded there had been a "broad degree of compliance" with the ACAS Code on disciplinary and grievance procedures. The EAT held that this conclusion conflicted with earlier liability findings that important procedures were not followed. The tribunal must now revisit whether an uplift of up to 25 per cent under section 207A TULRCA is appropriate.
- Medical evidence and causation. The tribunals treatment of the medical evidence, especially in Ms Bs case, was flawed. The EAT said the tribunal applied the wrong test when deciding causation for psychiatric injury, and it did not sufficiently assess whether the employers conduct contributed to or exacerbated Ms Bs mental ill health. A fresh evaluation is required for Ms Bs claims for loss of earnings and for damages for personal injury.
- Mitigation and periods of loss. The EAT accepted that tribunals may assess mitigation counterfactually, including the time a claimant might reasonably have taken to obtain new work. Nevertheless, it found the tribunals reasoning left uncertainty about the precise period for which Mr A was not fit to seek work. That period must now be reconsidered.
- Bonus calculation error. The remedy decision treated a 1,500 profit bonus as annual. The liability decision had found this bonus was paid every three months. The EAT upheld this numerical error and directed recalculation of loss awards on the correct basis.
Procedure and next steps
The EAT remitted several discrete matters to the tribunal for fresh consideration: the question of ACAS Code uplift; the correct period for which Mr A was not fit to seek work and the resulting loss of remuneration; the assessment of Ms Bs loss of earnings and whether she should receive damages for personal injury; and recalculation of awards to reflect that the 1,500 bonus was quarterly not annual. The EAT said these matters should be reconsidered by a differently constituted tribunal. All other findings in the remedy judgment remain in force.
Practical impact
This judgment underlines three practical points for employers and practitioners: first, tribunals must align remedy reasoning with earlier liability findings, including whether procedural failings amount to non-compliance with the ACAS Code; second, tribunals must engage carefully with medical evidence on causation where psychiatric injury or prolonged incapacity is alleged, and, where appropriate, consider expert evidence and divisibility of causes; third, even simple calculation errors can require remedial redetermination, so attention to detail in remedies is essential.
Contextual notes
The respondents did not take part in the EAT hearing. The first respondent was in liquidation and several respondents were debarred for failing to engage with the appeal. His Honour Judge Auerbach heard the appeal as a judge of the Employment Appeal Tribunal, Neutral Citation Number [2025] EAT 165.
Read the entire judgement here: A and B v C Ltd and others [2025] EAT 165
