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Ruling that the ACAS Code of Practice applies to SOSR dismissals

Posted by TonyBrownEmploymentSolicitor on May 6, 2013

The ACAS Code of Practice on Discipline and Grievance Procedures sets standards with which employers should comply when dismissing employees and a tribunal can increase compensation if the employer has unreasonably failed to comply with the ACAS Code.

The Code states that it applies to disciplinary situations which include misconduct and poor performance. It expressly does not apply to redundancy dismissals or the non-renewal of fixed term contracts and it is silent about whether it applies to dismissals for some other substantial reason (‘SOSR') or for ill health.

However, in the next case, the Employment Appeal Tribunal ruled that employers are expected to comply with the ACAS Code when dismissing for SOSR.

The Claimant was dismissed from his employment as a school teacher because of a breakdown in trust and confidence which the school alleged was caused by the Claimant’s attitude towards colleagues which alienated them to the point that they did not want to work with him.

A tribunal ruled that the Claimant had been unfairly dismissed. However, the tribunal refused to increase the Claimant’s award on grounds of the School’s failure to comply with the ACAS Code of Practice because it ruled that the Code of Practice did not apply to dismissals for SOSR.

The EAT allowed the Claimant’s appeal. It ruled that the tribunal was wrong to conclude that the Code of Practice did not apply to the Claimant’s dismissal. The unfair dismissal claim concerned conduct on the part of the Claimant which led the School to consider whether he should be dismissed, even if it was not his conduct but the effect of his conduct on his relationships with his colleagues which was the ultimate reason for his dismissal

Comment

This is the first decision of the EAT (and therefore binding on tribunals) that the ACAS Code applies to SOSR dismissals.

However, before this ruling, there was a decision by a tribunal that the Code applied to SOSR. In that case, an employer tried to force an unfavourable variation of terms upon its employees. The Claimant objected to this and was invited by telephone to attend a meeting. He duly attended the meeting, and, when he refused to agree to the proposed variation, was dismissed and brought a claim.

The tribunal’s view was that the ACAS applied to the dismissal, essentially by implication as unlike in redundancy situations, SOSR was not expressly excluded by the Code which was expressed to apply to disciplinary situations that ‘include' misconduct and/or poor performance.

The lesson for employers is that they should observe the ACAS Code in every dismissal except those specifically excluded by the Code ( redundancy dismissals or the non-renewal of fixed term contracts)

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown by e mail to tony@bathemploymentlaw.co.uk or by phoning him on 01225 740097.

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