There are five potentially fair reasons for dismissal under the Employment Rights Act 1996. Three of them form the majority of cases a union rep will face; these being conduct (i.e., misconduct cases), capability (i.e., sickness absence cases) and redundancy (i.e., well, the clue’s in the name!). The fourth is rare but is if there is some breach of a statutory restriction, an example is if an employee does not have permission to work under UK immigration law. And then there is the fifth which is for “some other substantial reason”, or SOSR. This is the ‘catch all’ of potentially fair reasons for dismissals and is most prone to abuse by employers.
In a misconduct case, when determining whether a dismissal was unfair an employment tribunal must have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures. But what about when a person is dismissed for SOSR?
ACAS is empowered to issue Codes of Practice under section 199 of the Trade Union and Labour Relations (Consolidated) Act 1992 to “practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations.” It is obligated under the Act to issue a code on trade union facility time and disclosure of information to trade unions but nothing else. It is therefore not obligated to provide a Code on Disciplinary and Grievance procedures or any other are of employment relations except those listed above. The Code on Disciplinary and Grievance Procedures is however undoubtedly the best known of ACAS’ codes and arguably the most significant, albeit one that in my view is tarnished by the paucity of substantive guidance.
So, there is surprisingly no statutory obligation on ACAS to provide guidance on fair dismissal processes; any guidance on SOSR dismissal is purely discretionary. The Code itself sets out that it covers grievances or ‘disciplinary situations’ which the Code states “includes misconduct and/or poor performance”. The Code therefore covers conduct and capability dismissals. ACAS expressly state the code does not apply to “redundancy dismissals or the non‑renewal of fixed-term contracts on their expiry.” It follows then that ACAS have, unhelpfully, left the question of whether the current Code of Practice applies where the dismissal is by reason of SOSR open.
The remainder of this post summarises two cases where this question has been addressed by the Tribunal. Helpfully, in both the EAT is stepped in the address the deficit in the ACAS guidance to suggest that in many SOSR scenarios the employer should consider the ACAS Code and that, failing to do so, allows a tribunal to order an increase in any unfair dismissal compensation.
In Lund v St Edmund’s School, Canterbury an IT teacher who was dismissed without notice because his employer came to the view that the employment relationship had broken down following the way Mr Lund reacted to problems with the school’s new IT systems. The tribunal found Mr Lund had not been dismissed because of his conduct but for some other substantial reason and that this dismissal was unfair. When making the compensation award for this unfair dismissal the tribunal did not consider awarding an uplift in compensation because the ACAS Code did not apply to SOSR dismissals.
The EAT found that an employer should follow the Code because his “claim concerned the conduct on his part which led the School to consider whether he should be dismissed, even if it was not his conduct but the effect of his conduct (whether on his relationships with his colleagues or the School’s belief about his commitment to the School) which was the ultimate reason for his dismissal.”
In short, where it an employee’s conduct that causes the issue for which dismissal is contemplated the ACAS Code should apply even if the end result of the procedure is dismissal for SOSR rather than conduct per se.
In Tubbenden Primary School v Sylvester, another case involving a school, a similar approach to that adopted in Lund was adopted. However, here there was no issue about the claimant’s performance at work but the fact that the claimant, the School’s Deputy Headteacher, was a friend of a former teacher from another school. That teacher had been suspended and arrested and the employer knew about this and had not expressed concerns over this. Over time this friendship, which the claimant sought to keep discreet, became known with pressure being brought on the school by parents of pupils. The claimant was dismissed because of a breakdown in in trust and confidence. Here too the EAT gave a firm indication that the ACAS Code is relevant to employers and that the principles in the Code should be applied as much as is possible to the process leading up to a decision to dismiss.
These are, I think, helpful cases. For the employee and trade union representative they provide some reassurance that when there is a complex situation which could develop into a SOSR dismissal they should be forthright in expecting that the whole process should be compliant with the ACAS Code, even though disappointingly, ACAS have made this reliance more difficult that it should be.
Lund v St Edmund’s School, Canterbury  UKEAT 0514_12_0805
Tubbenden Primary School v Sylvester  UKEAT 0527_11_2504