21 May 2013 #Employment
The ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) sets out guidance to be followed in ‘disciplinary situations’ and expressly states that this includes dismissals for misconduct and poor performance. A failure to follow the Code can result in a Tribunal making either an uplift or reduction in any award (depending on who is at fault) of up to 25%.
Whilst clearly stating that it does not apply to redundancies or non-renewal of fixed term contracts on their expiry, the Code is silent on whether or not it applies to dismissals for some other substantial reason (SOSR) and the EAT was recently asked to rule on this issue in Lund v St Edmund’s School, Canterbury UKEAT/0514/12.
The case involved a graphics design teacher who was dismissed without notice because his ‘erratic and sometimes irresponsible’ behaviour had led to a breakdown in trust and confidence.
The Tribunal found that the dismissal was both wrongful and unfair but reduced the award by 65% for contributory fault. The Tribunal did not address the issue of whether or not the Code applied to SOSR dismissals, stating only that the Code was silent on this point. However, when refusing the Claimant’s application for review, the Tribunal stated that it was inappropriate to apply the uplift as the Claimant had contributed so substantially to his dismissal.
The EAT allowed the appeal as it found that the Tribunal had erred in its approach both in failing to address the issue of whether or not the Code applied in the first place and then in failing to apply the uplift because of the Claimant’s contributory fault.
The EAT held that the Code applies where disciplinary proceedings are, or ought to be, invoked against an employee. This meant that the focus should be on the reason why the process was initiated and not the ultimate outcome of the process. In this case, because the process was initiated on the basis of the employee’s conduct, the Code applied even though it was not the employee’s conduct, but the effect of his conduct, which was ultimately the reason for his dismissal.
The EAT also held that the fact that the Claimant had contributed to his dismissal should not prevent the employer also being penalised for their own failings. Therefore an uplift can be applied irrespective of whether any reduction in award is being made for contributory fault.
Although this case makes it clear that the Code may apply to SOSR dismissals, it creates an element of uncertainty by requiring the Tribunal to substitute its view for that of the employer in deciding what was contemplated or ‘ought’ to have been contemplated at the outset.