Workers Not Entitled to Compensation Uplift

An employment tribunal was wrong to award a 25% uplift on compensation where a worker succeeded in claiming detrimental treatment on whistleblowing grounds. 

In Local Government Yorkshire v Khan, K claimed that her secondment had been ended because she had made a protected disclosure.  She subsequently resigned and claimed constructive unfair dismissal.  The tribunal found that she was not an employee and so could not claim unfair dismissal.  However, it found that she was a worker and that by ending her secondment, her employer had subjected her to a detriment on whistleblowing grounds.  It awarded her compensation which included a 25% uplift because the employer had failed to comply with the Acas Code.

The employer appealed, arguing that the power to award an uplift only applies in respect of employees.  The EAT agreed.  The wording of the relevant statutory provision only permits an uplift in respect of an employee – defined as an individual who has entered into or works under a contract of employment.

In coming to its decision, the EAT commented that “employment law does not always follow a logical course”.  Employees bringing discrimination and whistleblowing claims will be able to claim an uplift but workers and others who are not employees cannot.  It is not clear from the judgment why the tribunal concluded that the Acas Code applied in this case as it appears only to cover employees.  The employer did not argue this point on appeal but the EAT did say it was minded to accept that the employer was obliged to comply with the Code.