A and B v C Limited: EAT identifies errors in remedy assessment for harassment and victimisation claims

The Employment Appeal Tribunal has allowed an appeal concerning remedy awards following successful claims of harassment, victimisation and constructive dismissal, identifying multiple errors of principle in the tribunal's approach to ACAS Code uplift, medical evidence and causation.

HHJ Auerbach handed down judgement on 12 November 2025 in A and B v C Limited and others [2025] EAT 165, remitting several aspects for fresh consideration by a differently constituted tribunal.

Both claimants were former employees of C Limited who resigned in October 2018. At the liability hearing, the second claimant succeeded in numerous complaints of sexual harassment, age-related harassment, victimisation and constructive dismissal. The first claimant, who had supported her, succeeded in claims of victimisation and constructive dismissal.

The liability tribunal made trenchant findings that both claimants were suspended on "trumped up" misconduct allegations and that the second claimant's initial grievance of sexual harassment received no proper investigation or response. The tribunal found a "campaign" of harassment, discrimination and victimisation, particularly against the second claimant.

ACAS Code uplift error

The remedy tribunal concluded there was a "broad degree of compliance" with the ACAS Code and declined to uplift the awards. The EAT held this conclusion irreconcilable with the liability findings. The tribunal had failed to properly consider the first grievance, which received no investigation and no response, contrary to the Code's clear requirements for prompt investigation and written outcomes. Similarly, both claimants remained suspended after the conduct investigation concluded they had done nothing wrong.

The tribunal's reasoning appeared to focus primarily on the handling of the second grievance whilst overlooking these earlier, fundamental breaches. Fresh consideration of whether Code breaches occurred and, if so, the appropriate uplift percentage is required.

Causation and medical evidence

The tribunal applied a "solely or mainly attributable" test when assessing whether discriminatory treatment caused the claimants' inability to work. This was wrong. Following Olayemi v Athena Medical Care and BAE Systems v Konczak, the correct approach requires consideration of whether the treatment was a material cause, whether other causes existed, and whether resultant harm was divisible.

For the second claimant, the tribunal concluded her mental ill health was entirely attributable to pre-existing PTSD from childhood abuse, relying on findings from an earlier disability hearing. However, the EAT found this reasoning problematic. The earlier tribunal had noted depression and anxiety alongside PTSD, and medical evidence showed deterioration immediately following suspension in September 2018, with no prior mental health entries in GP records. The tribunal failed to consider whether discriminatory treatment contributed to deterioration, exacerbated the PTSD, or triggered a latent vulnerability.

Regarding damages for personal injury, whilst the tribunal was entitled to conclude expert medical evidence would assist, it erred by treating absence of such evidence as conclusively preventing any award. The tribunal should have assessed causation using available evidence, including GP records and contemporaneous medical notes.

Other errors

The tribunal miscalculated loss of earnings by treating the £1,500 profit bonus as annual rather than quarterly, requiring recalculation of both awards.

All matters except those specifically remitted remain undisturbed. The respondents, though debarred from participating in the appeal, may participate in the remitted hearing.

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