You’re probably clear that the ACAS Code of Practice on Disciplinary and Grievance matters clearly applies when dealing with staff complaints and conduct related disciplinary matters but does it apply in other circumstances? The reason why this is an important question is that the Employment Tribunal is encouraged to give a 25% uplift to any tribunal award to reflect non-compliance with the Code.
At the beginning of June the Employment Appeal Tribunal (EAT) made it clear in a case called Holmes v Qineti Ltd that whilst the disciplinary part of the Code will apply to performance related matters it doesn’t apply to ill health dismissals. In that case the employer had failed to get an up to date Occupational Health report before they dismissed so it became a question of how much the employee was going to be paid by way of their unfair dismissal at the remedies hearing. The Claimant contended that the ACAS Code applied and that a 25% uplift should apply under Section 207A of the Trade Union Labour Relations (Consolidation) Act 1992. The Claimant wasn’t successful because the EAT felt that the ACAS Code applied to cases where an employee’s alleged act or omission involved culpable conduct or performance on their part that requires correctional punishment not a situation of ill-health although clearly if it was a question of failure to comply with the sickness absence procedure that might fall under the disciplinary category, in which case, it would apply.
We’ve then had a decision in Phoenix House Ltd v Stockman hot on the heels of that case which related to a ‘some other substantial reason’ (SOSR) dismissal following a breakdown in working relationships. The Employment Appeal Tribunal found that this form of dismissal also does not attract the 25% uplift for failure to comply with the Code – the view was that if Parliament had intended the Code to apply that widely then it would have legislated for this specifically.
This leaves us with redundancy dismissals and dismissals for illegality – the Code also won’t apply in those cases unless of course the employee is dismissed for example for dishonesty (a conduct issue) relating to their failure e.g. to tell their employer they were no longer legally entitled to e.g. drive a vehicle.
This should provide some reassurance to employers that where they are attempting to follow procedures to dismiss people fairly and mistakes are made, they’re not going to be clobbered by this extra 25% uplift although clearly if they don’t follow fair procedures they can be vulnerable to a finding of unfair dismissal in any event.