Acas Code Applied to Dismissal for Some Other Substantial Reason

3 mins

Posted on 20 May 2013

The Acas Code of Practice on Disciplinary Procedures applied to a dismissal for some other substantial reason where disciplinary proceedings were, or ought to have been, invoked against the employee because their conduct had been called into question.

In Lund v St Edmund’s Canterbury School, L, a graphics design teacher, was dismissed due to a breakdown in trust and confidence. Prior to his dismissal he was absent from work for a short period due to stress, but when fit to return he was suspended on full pay and asked to attend a meeting. At the meeting he was handed a dismissal letter. This referred to concerns about how he dealt with challenges in his job which led to erratic and irresponsible behaviour, and a difficult and unhelpful attitude towards colleagues resulting in them no longer wanting to work with him. The reason given for dismissal was a breakdown in trust and confidence, not conduct.

L successfully claimed that his dismissal was unfair but appealed against the level of his compensation, arguing that compensation should have been increased due the employer’s failure to comply with the Acas Code of Practice on Disciplinary and Grievance procedures. The employer argued that the Code did not apply to a dismissal for some other substantial reason. 

The EAT upheld the appeal, finding that the Acas Code did apply. The Code states that it applies to disciplinary situations and this should be construed broadly. It applies where an employee faces a complaint which may lead to disciplinary action (whether because of misconduct or poor performance) and applies to the procedure under which the complaint is investigated and adjudicated upon. It is not the outcome of the process which determines whether the Code applies. The Code applies where disciplinary proceedings are, or ought to be, invoked against an employee because their conduct has been called into question. 

The Acas Code of Practice 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. Nothing is said about whether it applies where a dismissal is for some other substantial reason. This case makes it clear that it may apply. What determines whether it applies is not the ultimate reason relied on by the employer for dismissing an employee. Where an employee’s conduct is called into question, the employer’s procedures must comply with the Acas Code of Practice. An employer who fails to follow the Acas Code in such a case risks a finding of unfair dismissal and an uplift in compensation of up to 25%. 

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