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This article was published on July 12th, 2016
The Acas Code of Practice on Disciplinary and Grievance procedures applies to situations involving misconduct and poor performance. But what about ill health?
The Employment Appeal Tribunal (EAT) has confirmed that in cases of genuine ill health, employers don’t need to follow the Code. This, in turn, means that tribunals aren’t allowed to impose a penalty of up to 25% of any tribunal award because of a failure to follow the Acas Code – since the Code doesn’t apply in the first place.
Mr Holmes was a security guard who had been dismissed for no longer being able to do his job because of his poor health. This was held to be unfair, but the tribunal didn’t award an uplift in compensation for the employer’s failure to comply with the Acas Code. Quite right, said the EAT. This wasn’t a disciplinary case. Mr Holmes wasn’t to blame for his inability to do his job. Culpable conduct is key to the Code applying and, therefore, to the possibility of increased compensation.
Things might not always be this clear-cut. What begins as genuine ill health could become misconduct or culpable poor performance, or vice versa. The real risk here for employers is in not keeping a close eye on the issues as they develop. But this case provides some helpful clarification that in genuine ill health cases where there’s no disciplinary or culpable conduct element (ie something that calls for correction or punishment), the Code won’t apply – although a fair dismissal in those circumstances is obviously preferable to arguing over compensation.