{"id":727,"date":"2016-09-09T18:16:36","date_gmt":"2016-09-09T18:16:36","guid":{"rendered":"http:\/\/hr-management-dimensions.co.uk\/HRMDmn\/?p=727"},"modified":"2019-10-02T18:05:56","modified_gmt":"2019-10-02T17:05:56","slug":"acas-disciplinary-code-diluted","status":"publish","type":"post","link":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/acas-disciplinary-code-diluted\/","title":{"rendered":"ACAS Disciplinary Code Diluted"},"content":{"rendered":"<div class=\"entry-content\">\n<pre><em>This article was first published in our temporary blog <\/em><\/pre>\n<p><span style=\"color: #000000;\">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.<\/span><\/p>\n<p><span style=\"color: #000000;\">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.<br \/>\n<\/span><\/p>\n<p><strong><span style=\"color: #9b0505;\">A Life Raft \u2013\u00a0The ACAS Code of Practice<\/span> <\/strong><\/p>\n<p><span style=\"color: #000000;\">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.\u00a0 With some adjustments, it could be applied to the original 5 categories of fair reasons for dismissal.<br \/>\n<\/span><\/p>\n<p><span style=\"color: #000000;\">The categories were:<\/span><\/p>\n<ul>\n<li><span style=\"color: #000000;\">conduct;<\/span><\/li>\n<li><span style=\"color: #000000;\">capability including ill-health;<\/span><\/li>\n<li><span style=\"color: #000000;\">redundancy<\/span><\/li>\n<li><span style=\"color: #000000;\">statutory requirement;<\/span><\/li>\n<li><span style=\"color: #000000;\">some other substantial reason.<\/span><\/li>\n<\/ul>\n<p><span style=\"color: #000000;\">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.<br \/>\n<\/span><\/p>\n<p><span style=\"color: #000000;\">Now that is changing as the Courts revisit whether or not the Code applies to all the above categories.\u00a0<\/span><\/p>\n<p><span style=\"color: #9b0505;\"><strong>The Scope of the ACAS Code of Practice on Disciplinary Procedures\u00a0 is Reduced<\/strong><\/span><\/p>\n<p><span style=\"color: #000000;\">The Courts have decided that the Code does not apply in the following circumstances:<\/span><\/p>\n<ul>\n<li><span style=\"color: #000000;\">Ill-health dismissals in which the employee is not to blame for\u00a0performance or conduct issues;<\/span><\/li>\n<li><span style=\"color: #000000;\">Some Other Substantial Reason \u2013 a breakdown in working relationships.<\/span><\/li>\n<\/ul>\n<p><span style=\"color: #000000;\">However, caution is advised in taking that too literally as explained below.<\/span><\/p>\n<p><strong><span style=\"color: #9b0505;\">Ill-Health Dismissals<\/span><\/strong><\/p>\n<p><span style=\"color: #000000;\">With regard to ill-health dismissals, an employer would be unwise not to follow the well trodden process for such a dismissal. \u00a0 That process requires:<\/span><\/p>\n<ul>\n<li><span style=\"color: #000000;\">consultation with the employee;<\/span><\/li>\n<li><span style=\"color: #000000;\">obtaining an appropriate medical opinion;<\/span><\/li>\n<li><span style=\"color: #000000;\">considering the opinion and whether it is feasible to help the employee to return to work;<\/span><\/li>\n<li><span style=\"color: #000000;\">making reasonable adjustments to work duties and\/or environment if the individual comes within the scope of disability discrimination;<\/span><\/li>\n<li><span style=\"color: #000000;\">explaining to\u00a0and warning the employee that his\/her employment is in jeopardy if attendance etc. does not improve.<\/span><\/li>\n<li><span style=\"color: #000000;\">a \u00a0right of appeal should be given against such a warning.\u00a0<\/span><\/li>\n<\/ul>\n<p><span style=\"color: #9b0505;\"><strong>Breakdown in Working Relationships\u00a0<\/strong><\/span><\/p>\n<p><span style=\"color: #000000;\">Such grounds come within the \u2018Some Other Substantial Reason\u2019 category of dismissal. \u00a0The 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. \u00a0However, the Court held\u00a0that the Code did not state specifically that it applied to this type of dismissal and therefore\u00a0it would not apply it to these circumstances. \u00a0<\/span><\/p>\n<p>Managers will still need to demonstrate that a dismissal on this ground was reasonable in all the circumstances.<\/p>\n<p><span style=\"color: #000000;\">Breakdown in working relationships is not an uncommon ground and at times is used as an easier ground to dismiss. \u00a0Therefore, it is likely that ACAS will revisit the scope of the Code to bring a relationship breakdown within the Code. \u00a0<\/span><\/p>\n<p><strong><span style=\"color: #9b0505;\">\u00a9 2016 HR Management Dimensions Ltd<\/span><\/strong>.<br \/>\n<span style=\"color: #000000;\"><br \/>\n<\/span><\/p>\n<p><em><span style=\"color: #000000;\">Company Web and Related Sites<\/span><\/em><br \/>\n<a href=\"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\" target=\"_blank\" rel=\"noopener noreferrer\"><span style=\"color: #000000;\">Website: HR Management Dimensions<\/span><\/a><br \/>\n<span style=\"color: #000000;\">LinkedIn Page<\/span><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"wds_primary_category":0,"footnotes":""},"categories":[18,24,49],"tags":[46,48,47],"class_list":["post-727","post","type-post","status-publish","format-standard","hentry","category-employee-engagement","category-employment-law","category-performance-issues","tag-acas-disciplinary-code","tag-breakdown-in-working-relationships","tag-ill-health-dismissals"],"jetpack_featured_media_url":"","post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/posts\/727","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/comments?post=727"}],"version-history":[{"count":0,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/posts\/727\/revisions"}],"wp:attachment":[{"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/media?parent=727"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/categories?post=727"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hr-management-dimensions.co.uk\/HRMDmn\/wp-json\/wp\/v2\/tags?post=727"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}