Call us on:  0808 172 93 22

Follow the ACAS Code

Yellow Brick Road

SUMMARY: A recent case has emphasised that if in doubt, employers should follow the ACAS Code of Practice, even if the dismissal is for “some other substantial reason”.

Background:

The ACAS Code of Practice (the Code) states that it is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. It states that disciplinary situations include misconduct and/or poor performance. It does not apply to dismissals by reason of redundancy, but does not state whether it applies to dismissals for “some other substantial reason” (one of the five potentially fair reasons for dismissal).

If employers fail to follow the Code and an employee is unfairly dismissed, any award for unfair dismissal can be increased by up to 25%.

Facts:

Mr L, a teacher, was not happy with the computer equipment he used and he dismantled the system and refused to allow a consultant to observe his class. Shortly after this he did not go into work for a few days because of stress. On his return to work, he was suspended on full pay. An appointment was made for him to see a consultant psychiatrist who concluded that he was fit to return to work. However, Mr L’s suspension was not lifted and on his return to work he was given a letter notifying him of his dismissal.

One of the reasons given in the dismissal letter was that the trust and confidence essential to an employment relationship had broken down, and the reason was described by the Employment Tribunal as “some other substantial reason”.

Mr L brought claims for wrongful and unfair dismissal.

Employment Tribunal Decision:

The Employment Tribunal held that Mr L was wrongfully and unfairly dismissed. His contribution to his dismissal was however assessed at 65% which reduced his compensation. He did not receive any uplift on his compensation for the employer’s failure to follow the Code.

Mr L appealed in relation to his level of compensation to the Employment Appeal Tribunal (EAT).

Although Mr L appealed in relation to more than one issue, we will focus on the Employment Tribunal’s decision not to award any uplift for failure to follow the Code.

EAT Decision:

The EAT held that the Code is stated to apply to “disciplinary situations” and that where an employee faces a complaint which may lead to disciplinary action, the Code should apply, regardless of whether the employee ends up being dismissed for misconduct, poor performance or something else. The EAT was also unsure whether Mr L’s dismissal was really for misconduct, rather than “some other substantial reason”, but did not make a decision on this point.

The case was remitted to the Employment Tribunal to decide whether Mr L should be entitled to an uplift in compensation for the employer’s failure to follow the Code. The judgment by the EAT seems to indicate that it believes that Mr L should be entitled to an uplift.

What does this mean for employers?

In a nutshell, if in doubt, follow the Code. If there is any element of poor performance or misconduct, it is better to invoke capability/disciplinary procedures and to follow all the relevant stages. Employers should not forget that in any event they must behave reasonably, whatever the reason for the dismissal, and the Code is a good guide to what may be reasonable steps to take.

If you want to dismiss an employee in unusual circumstances and you are not sure whether you need to follow the Code, you should seek legal advice. We would be happy to advise you as to what steps you should take.

Case: Lund v St Edmunds School UKEAT/0514/12/KN

Hazel Robbins, Solicitor.

Contact Information
fgmedia@floydgraham.co.uk
+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Updated: by FG Solicitors
Call us on:  0808 172 93 22

FOLLOW THE ACAS CODE

Yellow Brick Road

SUMMARY: A recent case has emphasised that if in doubt, employers should follow the ACAS Code of Practice, even if the dismissal is for “some other substantial reason”.

Background:

The ACAS Code of Practice (the Code) states that it is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. It states that disciplinary situations include misconduct and/or poor performance. It does not apply to dismissals by reason of redundancy, but does not state whether it applies to dismissals for “some other substantial reason” (one of the five potentially fair reasons for dismissal).

If employers fail to follow the Code and an employee is unfairly dismissed, any award for unfair dismissal can be increased by up to 25%.

Facts:

Mr L, a teacher, was not happy with the computer equipment he used and he dismantled the system and refused to allow a consultant to observe his class. Shortly after this he did not go into work for a few days because of stress. On his return to work, he was suspended on full pay. An appointment was made for him to see a consultant psychiatrist who concluded that he was fit to return to work. However, Mr L’s suspension was not lifted and on his return to work he was given a letter notifying him of his dismissal.

One of the reasons given in the dismissal letter was that the trust and confidence essential to an employment relationship had broken down, and the reason was described by the Employment Tribunal as “some other substantial reason”.

Mr L brought claims for wrongful and unfair dismissal.

Employment Tribunal Decision:

The Employment Tribunal held that Mr L was wrongfully and unfairly dismissed. His contribution to his dismissal was however assessed at 65% which reduced his compensation. He did not receive any uplift on his compensation for the employer’s failure to follow the Code.

Mr L appealed in relation to his level of compensation to the Employment Appeal Tribunal (EAT).

Although Mr L appealed in relation to more than one issue, we will focus on the Employment Tribunal’s decision not to award any uplift for failure to follow the Code.

EAT Decision:

The EAT held that the Code is stated to apply to “disciplinary situations” and that where an employee faces a complaint which may lead to disciplinary action, the Code should apply, regardless of whether the employee ends up being dismissed for misconduct, poor performance or something else. The EAT was also unsure whether Mr L’s dismissal was really for misconduct, rather than “some other substantial reason”, but did not make a decision on this point.

The case was remitted to the Employment Tribunal to decide whether Mr L should be entitled to an uplift in compensation for the employer’s failure to follow the Code. The judgment by the EAT seems to indicate that it believes that Mr L should be entitled to an uplift.

What does this mean for employers?

In a nutshell, if in doubt, follow the Code. If there is any element of poor performance or misconduct, it is better to invoke capability/disciplinary procedures and to follow all the relevant stages. Employers should not forget that in any event they must behave reasonably, whatever the reason for the dismissal, and the Code is a good guide to what may be reasonable steps to take.

If you want to dismiss an employee in unusual circumstances and you are not sure whether you need to follow the Code, you should seek legal advice. We would be happy to advise you as to what steps you should take.

Case: Lund v St Edmunds School UKEAT/0514/12/KN

Hazel Robbins, Solicitor.

Contact Information
fgmedia@floydgraham.co.uk
+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.