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The ACAS Code of Practice: Ill health

View profile for Howard Robson
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The Employment Appeals Tribunal (EAT) had to decide if the ACAS Code of Practice regarding Disciplinary and Grievance Procedures applied to an ill heath dismissal where there was no evidence of poor performance.

Mr Holmes worked as a security guard for Qinetiq from 1996 until 2014. He had an extended number of absences due to a problem with his lower back, hip and legs, which eventually led to an operation in 2014 to resolve his issues. Qinetiq became concerned about Mr Holmes and he was subsequently dismissed. Mr Holmes pleaded Unfair Dismissal as Qinetiq failed to attain an up-to-date Occupational Health report which would accurately describe if he was capable of carrying out his job. At the remedy hearing, Mr Holmes tried to argue that he should receive an uplift in any compensation given that Qinetiq failed to follow the ACAS Code. The tribunal refused to uplift the award stating that the Code does not apply to dismissal because of ill health where no disciplinary proceedings have taken place.

Mr Holmes appealed to the EAT, which dismissed the appeal. The EAT stated that it was clear in the ACAS Code that an uplift in compensation was only applied in situations where an employee faces a complaint that may lead to disciplinary action. There needs to be ‘Capable Conduct’ regarding misconduct or poor performance that requires correction of punishment. The EAT stated that it is difficult to see capability where poor performance arises because of genuine illness. When an employee is absent due to ill health resulting in a dismissal, disciplinary action cannot be taken so the code cannot be invoked.

Howard Robson, Employment Team Partner at Warner Goodman explains “The ACAS Code on Disciplinary and Grievance Procedures applies only to dismissals for conduct and performance, not dismissal for ill health. The Code does not mention capability procedures relating to ill health; this decision confirms that employers who dismiss because of ill health concerns not relating to poor performance are not bound by the Code. It also clarifies that when there is an issue of poor performance the Code will only apply when there is an issue capability or misconduct at the fault of the employee.”


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