This article was first published in our temporary blog 

When the unfair dismissal legislation was introduced in 1974, the onus was on the employer to demonstrate that the reason for dismissal was fair in all the circumstances and that a fair procedure had been adopted when deciding whether or not to dismiss an individual.

The effectiveness of the Code and the safeguards it contained are being diluted by recent decisions of the Courts and it is likely that some employers will come to grief as they find themselves at sea so to speak.

A Life Raft – The ACAS Code of Practice

The ACAS Code was simple to understand and apply by managers and has been a reasonable yardstick against which to measure whether a procedure leading to a dismissal was fair.  With some adjustments, it could be applied to the original 5 categories of fair reasons for dismissal.

The categories were:

• conduct;
• capability including ill-health;
• redundancy
• statutory requirement;
• some other substantial reason.

The categories have been added to over the years but throughout the emphasis was upon the dual demonstration of a fair reason and a fair procedure.

Now that is changing as the Courts revisit whether or not the Code applies to all the above categories. 

The Scope of the ACAS Code of Practice on Disciplinary Procedures  is Reduced

The Courts have decided that the Code does not apply in the following circumstances:

• Ill-health dismissals in which the employee is not to blame for performance or conduct issues;
• Some Other Substantial Reason – a breakdown in working relationships.

However, caution is advised in taking that too literally as explained below.

Ill-Health Dismissals

With regard to ill-health dismissals, an employer would be unwise not to follow the well trodden process for such a dismissal.   That process requires:

• consultation with the employee;
• obtaining an appropriate medical opinion;
• considering the opinion and whether it is feasible to help the employee to return to work;
• making reasonable adjustments to work duties and/or environment if the individual comes within the scope of disability discrimination;
• explaining to and warning the employee that his/her employment is in jeopardy if attendance etc. does not improve.
• a  right of appeal should be given against such a warning. 

Breakdown in Working Relationships 

Such grounds come within the ‘Some Other Substantial Reason’ category of dismissal.  The decision that the ACAS Code does not apply arose because the Court was asked to consider awarding an uplift of 25% of the compensation as permitted for breaches of the ACAS code.  However, the Court held that the Code did not state specifically that it applied to this type of dismissal and therefore it would not apply it to these circumstances.  

Managers will still need to demonstrate that a dismissal on this ground was reasonable in all the circumstances.

Breakdown in working relationships is not an uncommon ground and at times is used as an easier ground to dismiss.  Therefore, it is likely that ACAS will revisit the scope of the Code to bring a relationship breakdown within the Code.  

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