Recent case law has clarified the scope of the ACAS Code of Practice on Disciplinary and Grievance Procedures (“ACAS Code”) and confirmed that it does not apply to ill health dismissals.
Sarah Begley, Employment Solicitor at The Wilkes Partnership comments: “The recent EAT case of Holmes v QinetiQ Limited has confirmed that it does not apply to ill health dismissals. This is helpful clarity for employers but there are instances where employers will still need to be cautious”.
The ACAS Code explicitly states that it applies to dismissals for conduct and performance and that it does not apply to dismissals for redundancy or where a fixed term contract expires without renewal. However, the ACAS Code does not mention other issues affecting capability, such as ill health.
Significantly, Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 deals with the penalty for failing to follow the ACAS Code. It says that where a tribunal makes a finding of unfair dismissal, it must consider whether to make an uplift or reduction to any award made in cases to which the ACAS Code applies but there has been an unreasonable failure to follow it. This uplift or reduction can be up to a maximum of 25%.
In the recent Holmes case, Mr Holmes was dismissed from his job as a security guard which he had held for many years on the grounds of ill health as he was considered no longer capable of performing his role. The dismissal was found to be substantively unfair as QinetiQ Limited had failed to obtain an up to date Occupational Health report to establish Mr Holme’s ability to achieve reliable attendance following an operation in April 2014 which had largely resolved aspects of his ill health.
One key issue on appeal was whether a failure to comply with requirements of the ACAS Code should result in an uplift in compensation for the employee.
The EAT concluded that the ACAS Code does not apply to internal procedures operated by an employer concerning an employee’s capability (or otherwise) to do a job arising from genuine sickness absence, as it cannot be said that there is any culpable conduct on the part of the employee.
However, the EAT went on to say that the situation would be different if there was an issue with regard to adherence to the sickness absence procedures themselves or, if there was a suspicion that the ill health causing the absence is not genuine.
Sarah Begley cautions: “The line can sometimes be blurred between whether the ill health and impact upon the business is the issue or, whether the issue is really that the employee in question is taking repeated and perhaps questionable instances of short term absences. In the first instance, the reasoning in QinetiQ suggests that the ACAS Code would not be applicable but in the latter, the ACAS Code is likely to apply. It may well be that there is a need to alter the process/procedure at some stage if there is suspicion of personal culpability.”
For advice in relation to the issues arising from this article, please contact Sarah Begley or any member of the Employment Team on 0121 733 8000.