03 August 2016
Acas Code of Practice does not usually apply to dismissals for ill-health
Employers will welcome a ruling that the ACAS Code of Practice on Disciplinary and Grievance Procedures, which allows a Tribunal to add an 'uplift' to compensation payable to unfairly dismissed employees, does not apply to dismissals for ill-health - unless there has been 'culpable' conduct or performance by the employee.
A security guard was dismissed on grounds of capability because of his level of sickness absence. However, the employer failed to obtain an up-to-date occupational health report so the Employment Tribunal (ET) ruled that his dismissal was unfair.
Under the ACAS Code of Practice on Disciplinary and Grievance Procedures, an ET is able to award an 'uplift' when assessing compensation payable to an employee for unfair dismissal for an employer's failure to comply with the requirements of a relevant ACAS Code of Practice. The employee claimed an uplift in this case.
The Employment Appeal Tribunal agreed with the ET that the Code did not apply and no uplift should be made. It said the Code only applied to cases where there was culpable conduct or performance by an employee - conduct or performance which warranted a sanction, such as correction or punishment. Conduct or performance arising from ill-health would rarely be culpable conduct or performance (although it could be if, for example, the relevant disciplinary measures were taken because an employee failed to comply with sickness procedures). There was no such culpable conduct in this instance.
Employers found to have unfairly dismissed an employee for ill-health reasons will not usually be subject to the ACAS Code unless there was culpable conduct on the employee's part. Therefore, employers will not be liable to pay an 'uplift' on compensation payable.
Holmes v Qinetiq Ltd UKEAT/0206/15/BA