ACAS Code does not apply to ill heath dismissals

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A failure to follow the ACAS Code of Practice on Disciplinary and Grievance can result in, not only an unfair dismissal, but an uplift of up to 25% of any compensation due to the unfairly dismissed employee.

The Employment Appeal Tribunal in Holmes v QinetiQ Ltd. [2016] confirms that the ACAS Code does not apply to ill health dismissals other than in cases where the ill health leads to a disciplinary issue such as a failure to comply with sickness absence procedures.

The Facts

The Claimant was a security guard who was dismissed on the grounds of ill health because he was no longer capable of performing the duties required for his job. The Employment Tribunal found that he had been unfairly dismissed because of a failure to obtain an up-to-date occupational health report but declined to award an uplift to the compensation.

At the Employment Appeal Tribunal, the employee contended that the ACAS Code applied and that the unreasonable failure to follow the code entitled him to an uplift of compensation.

The Employment Appeal Tribunal Decision

The Employment Appeal Tribunal agreed with the Employment Tribunal that the ACAS Code did not apply.

The reason given was that the ACAS Code is limited to internal procedures relating to misconduct or poor performance. Given the fact that no disciplinary procedure was invoked and that the only issue was the Claimant’s capability to perform the job of security guard by reason of his illness, the refusal to an uplift in compensation was correct.

What Does This Mean For Employers?

Although it is perhaps clear from its title, the ACAS Code on Discipline and Grievance only applies to cases where an employee’s alleged act or omissions involve culpable conduct or performance on their part that requires correction or punishment i.e. misconduct and poor performance.

This decision will give employers some assurance that dealing with sickness issues flexibly, as is sometimes required, will not necessarily result in an unfair dismissal with the further consequence of compensation being increased. Of course, this assurance relates only to the application of procedural steps and employers still need to be mindful of requirements to obtain sufficient information on an employee’s condition and prognosis, and to consult with the employee before making any decision.

For assistance with this or any other employment law matter please contact Thomas Wood by email on thomas.wood@forbessolicitors.co.uk or phone on 0333 207 1153.

Thomas Wood

About Thomas Wood

Tom Wood is an Associate Solicitor within the Employment team at Forbes Solicitors. Tom’s blogs cover his specialisms of restructures, TUPE, discrimination and the termination of employment. Tom also writes and advises companies in relation to holidays and compliance with the working time regulations; handling maternity and paternity matters as well as whistleblowing. Tom provides a practical and commercial insight on the most complex of employment problems.
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