August 31, 2016

Does the ACAS Code Apply to SOSR Dismissals?

In Phoenix House Ltd v Stockman UKEAT/0264/15, the Employment Appeal Tribunal (EAT) considered whether the ACAS Code of Practice on Disciplinary and Grievance Procedures (Code) applies to dismissals for “some other substantial reason” (SOSR).

Ms Stockman was employed as an accountant for a charity. She believed she had been unfairly treated by a director. She raised a grievance against him but concurrently became subject to disciplinary action after inappropriately confronting him. Her grievance was dismissed and she was given a written warning. After appealing both findings unsuccessfully, she was invited to a formal meeting to discuss her continuing employment. Despite Ms Stockman expressing a wish to return to work, her employer dismissed her, finding that the working relationship had irretrievably broken down.

The Employment Tribunal found Ms Stockman’s dismissal to be unfair both substantively and procedurally. The Tribunal also found that the dismissal had been in breach of the Code which meant it could apply a 25 percent uplift on the compensation awarded to Ms Stockman. On appeal, the EAT upheld the finding of unfair dismissal but held that the Code does not apply to SOSR dismissals. While a fair process would often require certain of its provisions to be applied (e.g. giving the employee the opportunity to state their case before dismissal), the EAT held that clear words are required to give rise to the uplift for breach of the Code. Since the Code itself does not expressly state that it applies to SOSR dismissals, the EAT’s view was that the U.K. Parliament did not intend it to apply to such dismissals.

This case provides helpful clarification in this area. However, employers should note that SOSR dismissals are rarely straightforward and advice should be obtained at the earliest opportunity.

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