Commentary

(g) Relevance of case law on the previous provisions

Division AII Contract of Employment
| Commentary

(g) Relevance of case law on the previous provisions

| Commentary

(g)     Relevance of case law on the previous provisions

One particular question is whether any assistance can be derived from the cases on the equivalent uplift provision in the previous legislation, EmA 2002 s 31. This provided that if the relevant gateway condition was met the tribunal was required to increase (or as the case might be reduce) its award of compensation by 10% unless there were exceptional circumstances which would render the making of the increase or decrease unjust or inequitable. As there is no equivalent threshold of 'exceptional circumstances' in s 207A, it is unlikely that authorities on what could constitute such circumstances will be of relevance in elucidating the criteria for the exercise of the discretion whether to increase or decrease an award. (It may, however, be relevant that one factor held to meet the s 31 criterion was that the sheer size of the award would make an increase of even 10% a disproportionate penalty: see in particular Chagger v Abbey National plc [2009] IRLR 86, [2009] ICR 624, EAT, where the tribunal had reduced the uplift to 2% because of the extremely large

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