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Case law: 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.

Legal Alert

This update was published in Legal Alert - August 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

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.

Operative date

  • Now

Recommendations

  • 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, and will not be liable to pay an 'uplift' in compensation payable

Case ref: Holmes v Qinetiq Ltd UKEAT/0206/15/BA

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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