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Victimisation/Dismissal for Some Other Substantial Reason Can Cost You Dearly.

If the ACAS Code of Practice on discipline and grievance applies to a dismissal and has not been complied with, the employment tribunal can, when awarding compensation for unfair dismissal, uplift the award by up to 25%. Although the Acas Code expressly states that it applies to dismissals for conduct and performance, it is silent on whether or not it applies to dismissals for some other substantial reason (SOSR).
The EAT has considered the applicability of the Acas Code to SOSR dismissals for the first time. The case concerned L, who was employed as a graphics and design teacher at a school, SCS. The relationship between L and SCS broke down because of a dispute about computer equipment and his refusal to co-operate with a consultant engaged to report upon his teaching. L was called to a meeting with no prior warning of what was to be discussed or of the fact that dismissal was being considered. Despite this, he was dismissed at that meeting. The dismissal letter handed to him at the meeting referred to concerns SCS had about L’s behaviour, a loss of confidence in L’s commitment to the school and his difficult and unhelpful attitude. His employment was terminated on the basis that “trust and confidence essential to an employment relationship has broken down”. His claims for wrongful and unfair dismissal were upheld but no uplift was made to his compensation in respect of the employer’s failure to follow the Acas Code. He appealed his compensation award.

The EAT held that the tribunal had failed to adequately consider whether the Acas Code applied. The Acas Code applies to “disciplinary situations” and this should be construed broadly; if an employee is facing a complaint which may lead to disciplinary action (for misconduct or poor performance), the Acas Code should apply, regardless of whether the employee ends up being dismissed for misconduct, poor performance or something else. In the EAT’s view, “The important thing is that it is not the ultimate outcome of the process which determines whether the Code applies. It is the initiation of the process which matters. The Code applies where disciplinary proceedings are, or ought to be, invoked against an employee.”
Here, SCS had clearly contemplated that L might be dismissed because of his conduct and behavior and, as it was that conduct which made SCS and his colleagues lose confidence in him, the Acas Code should have been invoked. The case has been sent back to the tribunal to consider whether or not his compensation should be uplifted.
However, whilst the Acas Code can apply to SOSR dismissals, it was clearly in the EAT’s thinking that this may not always be the case. If the SOSR dismissal in no way relates to the employee’s conduct or behavior, the Acas Code may not apply.

Lund v St Edmund’s School, Canterbury [2013] UKEAT/0514/12

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