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8 May 2013
Employment Appeal Tribunal (EAT)
Keith J, Mr B Beynon and Mrs A Gallico
The rules about disciplinary procedures in ACAS's Code of Practice on Disciplinary and Grievance Procedures apply to dismissals for reasons connected with conduct, not just to dismissals because of conduct.
L's opposition to the school's computer equipment alienated him from colleagues and caused the school to lose confidence in him. He took time off work for stress. On his return, he was suspended and then invited to a meeting. At the meeting, he was dismissed because of the school's lack of confidence in him and his alienation from colleagues, which were not conductive to effective working relationships.
The tribunal held the dismissal was for ‘some other substantial reason' rather than his conduct. It was unfair because he had not been told beforehand of the purpose of the dismissal meeting and had no opportunity to prepare for it; and because no-one had attempted to deal with his concerns before attitudes hardened. Compensation was reduced by 65% because L had contributed to his dismissal. The tribunal did not award an uplift in compensation because the reason for dismissal was ‘some other substantial reason' which, the tribunal said, was not covered by ACAS's Code of Practice and because L had contributed so substantially to his dismissal.
The EAT held that L's contribution to his dismissal did not stop the tribunal from applying the uplift. L had not contributed towards the school's failure to follow the Code of Practice. Secondly, the Code of Practice applies to disciplinary situations including misconduct and/or poor performance. Here L's conduct was being called into question. So the Code of Practice applied.
The EAT distinguished Ezsias v North Glamorgan NHS Trust where the employer focused on the breakdown in working relationships and not on the conduct which caused it. That was not a disciplinary situation so the Code of Practice did not apply.
The case was remitted to the tribunal to decide whether the school's failure to comply with the Code was unreasonable and, if so, whether it would be just and equitable to uplift the award and, if so, by what percentage.
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