Dismissals – when the ACAS Code doesn’t apply

When faced with a disciplinary situation which may end in dismissal, it is important for employers to not only follow their own disciplinary rules and procedures, but commonly to also take account of the minimum procedural requirements set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The ACAS Code sets out the basic requirements to be followed, such as the right of accompaniment and the right of appeal. Where employers fail to follow the ACAS Code, they can be penalised if the employee takes their claim to an Employment Tribunal, by way of the Tribunal awarding an increase in compensation to reflect the employer’s procedural failings.

However, as is so often the case with employment and human resource matters, one size does not fit all. Recent case law has highlighted two areas where the employers’ procedures for dismissal did not need to follow the ACAS Code.

The first case concerned ill-health absence. It was determined that because the employee was not culpable in any way (i.e. it was not a matter or conduct or performance), the ACAS Code did not apply. Whilst that means employers are able to proceed with dismissal on grounds of ill health absence without needing to follow the requirements of the ACAS Code, a fair and proper sickness management process must still be followed to avoid claims such as disability discrimination.

The second case was a dismissal for Some Other Substantial Reason (SOSR). Here, the employee had not committed an act of misconduct and there was no issues with her capability. Instead, the relationship with her co-workers had deteriorated to such an extent that she could not be re-incorporated back into her role without an unacceptable disruption to the workforce. Again, it was determined that it was no necessary to follow the ACAS Code because the issues were distinct from conduct and capability, but were rooted in a breakdown in working relationships.

These cases are a reminder that employers are not always restrained by procedures to make decisions about an employee’s termination, but caution should also be exercised to ensure steps taken are fair and reasonable in the circumstances.

If you would like support disciplinary issues or how to fairly terminate employment, please contact our team of HR Consultants on 0808 168 5780.