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Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, inserted by the Employment Act 2008, is concerned with the effect of failure to comply with the ACAS Code. In Lund v St Edmund's School the EAT, presided over by Keith J, has held that, when considering whether "it is just and equitable in all the circumstances", pursuant to Section 207A, to make an uplift to a compensatory award for an employer's failure to follow the Code, an Employment Tribunal should not take into account the fact the employee had contributed to his dismissal.
Mr Lund was a school teacher. He was dismissed on the basis that the School had lost confidence in him, he had alienated his colleagues and there had been an irreparable breakdown in the employment relationship. The ET concluded that his dismissal was for "some other substantial reason" and was procedurally and substantively unfair. His basic and compensatory awards were reduced, however, by 65 per cent for contributory fault.
The EAT held that there was no reason why a provision which was supposed to penalise employers for failing to comply with a relevant code should be disapplied in a case in which the employee had not contributed to that non-compliance. Mr Lund had done nothing to contribute to the School's failure to act in accordance with the ACAS Code. It was not open to the tribunal to deny him an uplift on his award on the basis that he had contributed substantially to his dismissal. The fact that he had contributed substantially to his dismissal had already resulted in his basic and compensatory awards being reduced by 65 per cent. To deny him an uplift on what remained of his compensatory award amounted to him being penalised twice and was an example of impermissible double-counting.
Moreover, the fact that Mr Lund was dismissed, not for a reason related to his conduct, but for "some other substantial reason" of such a kind as to justify his dismissal did not mean that Mr Lund's claim did not concern a matter to which the ACAS Code related. His claim concerned the conduct on his part which led his employer to consider whether he should be dismissed, even if it was not his conduct, but the effect of his conduct on others, which was the ultimate reason for his dismissal.
The EAT said that the ACAS Code was intended to apply when an employee faced a complaint which might lead to disciplinary action, or where an employee raised a grievance. The ET had fallen into error by focusing on the outcome of the disciplinary process and not whether it had, or should have, been invoked. It was true that by finding that the reason for the dismissal was "some other substantial reason" the ET was saying that he had been dismissed for a non-disciplinary reason; but that did not mean that the Code had not applied to the process which resulted in that outcome. If the School had not invoked the disciplinary procedure, the ET should have asked whether the disciplinary procedure ought to have been invoked. It should have been obvious to the School that once Mr Lund's conduct had been called into question and it might lead to his dismissal, the disciplinary procedure should have been invoked, even if the School ultimately decided that he was to be dismissed for what the ET found to be a non-disciplinary reason. That was what distinguished the case from Ezsias v North Glamorgan NHS Trust  IRLR 550. In Ezsias the Trust never contemplated dismissing Mr Ezsias for the conduct on his part which had caused the breakdown in the working relationships between him and his colleagues. In Mr Lund's case, that was clearly in the contemplation of the School, even if it ultimately decided to dismiss him for a reason which the ET found did not relate to his conduct.
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