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The Employment Appeal Tribunal (EAT) has held that the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) only applies to ill health dismissals where there is culpable conduct by the employee.
The ACAS Code states that it applies to dismissals relating to misconduct and poor performance. Where an employee unreasonably fails to comply with the provisions of the ACAS Code, employment tribunals may adjust any award by up to 25%. Until now it has not been clear if the ACAS Code applied to ill-health dismissals.
In Holmes v QinetiQ, Mr Holmes was employed by QinetiQ from 1996 until 2014, when he was dismissed on the grounds of ill health, as he was no longer capable of doing the job of security guard.
At the Employment Tribunal (ET), QinetiQ accepted that the dismissal had been unfair, due to its failure to obtain an up-to-date occupational health report before Mr Holmes was dismissed.
Mr Holmes argued for an uplift in his compensation because QinetiQ had not complied with the ACAS Code. The ET held, and the EAT confirmed on appeal, that the ACAS Code does not apply to ill health dismissals where there is no disciplinary aspect.
It was confirmed that the ACAS Code only extends to dismissals for culpable misconduct or culpable poor performance which require correction or punishment giving rise to a disciplinary situation. The EAT said that culpability in relation to ill health dismissals would only likely arise in limited and specific circumstances, for example if the employee failed to comply with sickness absence procedures or it was alleged that the ill health was not genuine.
In Mr Holmes' case, he had been unable to perform his job because of his illness and there was no suggestion that his conduct or performance was culpable in any way, which would have merited disciplinary action. QinetiQ was therefore not required to follow the ACAS Code.
This decision confirms that the ACAS Code will not apply to genuine ill health dismissals where there is no element of culpable conduct. However, the ACAS Code sets out basic principles of fairness and employers should still have regard to those principles when dealing with issues of ill health.
The case is also a useful reminder that employers need to obtain up-to-date medical advice before making a decision to dismiss for capability reasons on the grounds of ill health.