Ill health dismissals
Labour & European Law Review Weekly Issue 480 27 July 2016
The Acas Code of Practice on Disciplinary and Grievance applies to all dismissals except redundancy dismissals or the non-renewal of fixed term contracts on their expiry. In Holmes v QinetiQ, the Employment Appeal Tribunal (EAT) held that it does not cover dismissals as a result of ill health either.
Mr Holmes worked as a security guard for QinetiQ from July 1996 until April 2014 when he was dismissed on grounds of ill health after a number of extensive absences.
The company conceded that the dismissal was unfair because it had failed to obtain an up to date occupational health report after Mr Holmes had an operation in April 2014 that effectively resolved the pain he had been experiencing. The tribunal then had to decide on the amount of compensation to award Mr Holmes at a remedies hearing.
Section 207(A)(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 states that if it appears to the tribunal that a relevant Code of Practice applies and the employer has unreasonably failed to comply with it, it may, “if it considers it just and equitable in all the circumstances to do so” increase the award to the employee by up to 25 per cent.
The tribunal considered whether the Acas Code of Practice on Disciplinary and Grievance Procedures applied and decided that it was only relevant to dismissals relating to conduct or poor performance in which there was an element of culpability on the part of the employee.
As this case concerned a capability dismissal because of ill health and had no disciplinary component (nor was there any suggestion that Mr Holmes was culpable in relation to his conduct or performance), the tribunal held that it did not have the power to uplift the award pursuant to section 207A(2).
Mr Holmes appealed, arguing that “disciplinary” is a wide term which extends to dismissals for all reasons except those expressly excluded in paragraph 1 of the Code. In other words, redundancy dismissals or the non-renewal of fixed term contracts on their expiry.
However, the EAT dismissed his appeal, holding that the word “disciplinary” is an ordinary English word. As such, a disciplinary situation must be a situation where breaches of rules or codes of behaviour or discipline are corrected or punished.
Although the Code does not expressly refer to capability dismissals, it was clear that it was intended to apply to any situation in which an employee faced a complaint or allegation that might lead to a discipline
ary situation or to disciplinary action. And although poor performance could involve both “culpable and non-culpable conduct”, disciplinary action would not ordinarily be invoked where the employee was absent through ill health leading to dismissal.
The tribunal in this case found that no disciplinary procedure was invoked because apart from the effects of his illness, Mr Holmes was able to do his job. Nor was there any suggestion that he had breached the company’s rules of conduct or discipline so as to give rise to a disciplinary situation. That meant that QinetiQ did not have to follow the Code and the uplift under section 207A(2) could not be applied.