Employment Law Update – Acas Code only applies to ‘culpable conduct’ dismissals
27 July 2016
The Employment Appeal Tribunal (EAT) has confirmed that the Acas Code of Practice on Disciplinary and Grievance Procedures only applies in relation to dismissals where there is some form of ‘culpable conduct’.
Holmes v Qinetiq, EAT
Mr H was dismissed from his job as a security guard on health grounds following a number of extended absences relating to problems with his back, hips and legs. His employer conceded that the dismissal was unfair, as it had failed to obtain an up-to-date occupational health report prior to his dismissal, following an operation to attempt to resolve his health issues.
Mr H claimed that his compensatory award should be uplifted to reflect the employer’s failure to follow the Acas Code of Practice when dismissing him. The tribunal refused to award any uplift on the grounds that the Code does not apply to dismissals on grounds of ill health, without any disciplinary component.
The EAT dismissed Mr H’s appeal, finding that the Code is only intended to apply to situations where an employee faces a complaint or allegation that may result in disciplinary action. There must be ‘culpable conduct’, whether in the form of misconduct or poor performance, requiring correction or punishment. Poor performance is capable of involving both culpable and non culpable conduct, but where it’s the consequence of genuine illness or injury the EAT said it would be difficult to see how culpability would be involved.
In circumstances where there is a failure to comply with sickness absence procedures, or an allegation that the ill health is not genuine, a disciplinary procedure could be invoked to address the alleged culpable conduct.
In this case, there was no suggestion of any culpable conduct on the part of Mr H, meaning that the employer did not have to follow the Acas Code.
This decision confirms that in situations of genuine ill health, the Acas Code does not have to be followed. The non-statutory guidance to accompany the Code of Practice includes guidance on dealing with ill-health absences (appendix 4 of the Acas guidance).
The decision also clarifies that the Code will generally not be applicable in relation to dismissals for ‘some other substantial reason’ unless there is some form of culpability on the part of the employee (see also our report of Phoenix House Ltd v Stockman).
The content of this article is for general information only. For further information regarding the Acas Code, please contact a member of Birketts’ Employment Team. Law covered as at July 2016.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2016.