EAT rules on relationship between ACAS Code of Practice and SOSR dismissals

Those companies with an interest in Employee Management Ltd’s (http://www.employeemanagement.co.uk) HR advice may wish to read of a recent ruling of the Employment Appeal Tribunal (EAT) in relation to whether the increase in compensation arising from a breach of the ACAS Code of Practice applies to dismissals for “some other substantial reason”.

The EAT said that it did, having considered the facts in Lund v St Edmunds School. In this case, Mr Lund encountered difficulties with his work, becoming especially frustrated by the computer equipment at the school. He caused alienation among colleagues and a downturn in morale, culminating in the school dismissing him on the grounds that it no longer had confidence in him.

Although it was found by the employment tribunal that “some other substantial reason” accounted for his dismissal, the dismissal was also found to be procedurally unfair, given that Mr Lund was not warned of the dismissal meeting and did not have the opportunity to appeal. Before, in the words of the tribunal, “attitudes hardened on both sides”, there was also no attempt by anyone to address his concerns about the computer system, meaning that his dismissal was also substantively unfair.

Compensation was awarded by the tribunal, with it being reduced on ground of contributory fault. However, no uplift was made by the tribunal for the ACAS Code of Practice being breached, pursuant to Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. The Code of Practice was considered “silent” by the tribunal, with regard to its applicability to “some other substantial reason” dismissals. It was on this point that Mr Lund appealed.

It was held by the EAT that the tribunal was wrong. The employee may have been dismissed for “some other substantial reason” rather than for a reason related to his conduct, but this did not mean that the claim of the employee did not concern a matter to which the ACAS code had applicability. His claim concerned conduct on his part which led to consideration by his employer of whether to dismiss him, even if the ultimate reason for dismissal was not his conduct, but instead the effect that his conduct had on others.

The EAT also ruled that declining to apply the uplift simply on the grounds that contributory fault had led to a reduction in compensation, was incorrect. Although Mr Lund may have contributed to his dismissal, nothing that he had done had contributed to the failure of the school to act in accordance with the Code. It held that Mr Lund was effectively being penalised twice over by being denied an uplift on the remainder of his compensatory award.

Cases like the above only demonstrate, once again, the importance of organisations considering the latest employment law advice prior to the termination of employment contracts. Employee Management Ltd (http://www.employeemanagement.co.uk) is happy to assist those organisations requiring employment tribunal representation or other forms of HR support.

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