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Does the ACAS Disciplinary Code apply to ill health dismissals?

Posted by TonyBrownEmploymentSolicitor on June 30, 2016

The Acas Code of Practice on Disciplinary and Grievance Procedures sets out steps that an employer should take in cases of dismissal for misconduct and poor performance. Tribunals must take it into account in determining fairness, and can also increase compensation by up to 25% if the employer has unreasonably failed to comply with the Code.

Although the Acas Code states specifically that it applies to misconduct and poor performance situations, it does not mention other issues affecting capability, such as ill health.

In the case below, the EAT had to consider whether an employee who had been unfairly dismissed on grounds of ill health should receive an increase in his compensation on the basis that the employer had not followed the Code.

In that case, the Claimant was dismissed when he became incapable of doing his job because of his ill health.

The employment tribunal ruled that the dismissal was unfair but rejected the Claimant’s argument that his compensation should be increased because of his employer’s failure to follow the Code when dismissing him, ruling that the Code does not apply to dismissals for ill health.

The EAT agreed with the employment tribunal that the Acas Code did not apply and no uplift in compensation was applicable.

The EAT explained that the Acas Code is intended to apply only to situations where an employee faces an allegation that may lead to disciplinary action. This infers "culpable conduct", whether in the form of misconduct or poor performance, that requires correction or punishment.

It was difficult to see how ill health fell into this category.

The position would be different where the ill health leads to a disciplinary issue such as a failure to comply with a sickness absence procedure. In that situation the disciplinary procedure is invoked to address alleged culpable conduct.

Comment

This decision does not mean that there may never be circumstances in which employers are bound to follow the Acas Code before dismissing employees for ill health; for example, if the employee’s ill health leads to a disciplinary issue such as a failure to comply with a sickness absence procedure. However, it would not apply to dismissals for genuine ill health.

There has been confusion over whether the Code applies to dismissals for ‘some other substantial reason’. This decision suggests that the Code will not apply to SOSR dismissals unless there is some element of misconduct, or culpable poor performance.

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