The ACAS Code of Practice (COP1) is said to explicitly not apply to redundancy dismissals. Two recent cases have extended the circumstances in which the Code does not apply to include ill-health and some other substantial reason dismissals.
The case of Holmes v QinetiQ Ltd  found that the Code does not apply in ill-health dismissals. The EAT confirmed that the Code only applies to dismissals where there is “culpable conduct” whether in the form of misconduct or poor performance, which requires either correction or punishment. In this case, Mr Holmes worked as a security guard and had a number of absences for health reasons which ultimately led him to be dismissed on ill-health grounds on the basis he was no longer capable of performing his role.
The EAT said that it was clear the Code was only intended to apply in cases where an employee faces a complaint or allegation that may lead to disciplinary action. Misconduct was clearly culpable conduct but poor performance could be both culpable and non-culpable. Where poor performance is a consequence of genuine ill-health or injury this would not be a disciplinary situation. Where on the other hand there is ill-health and something like a failure to comply with the sickness absence policy or an issue over the genuineness of the sickness absence, the disciplinary process maybe invoked to deal with the alleged culpable conduct. Therefore the employee whilst he had been unfairly dismissed could not obtain any uplift as a remedy for failure to follow the Code.
The case was shortly followed by the case of Phoenix House Ltd v Stockman again before the EAT which held that the Code (and thus any uplift for failure to follow it) did not apply to some other substantial reason dismissals. In this case it was a dismissal for a breakdown in the working relationship. Mrs Stockman brought an unsuccessful grievance against a fellow employee and was issued a written warning for misconduct. The employer dismissed her as it took the view that the employment relationship had broken down and was irretrievable. She was found to have been unfairly dismissed and was awarded an uplift for failing to comply with the ACAS Code of Practice.
The employer appealed and the EAT upheld the claims for unfair dismissal but rejected the Tribunal’s conclusions as to the ACAS Code and thus the uplift. The EAT found that clearly elements of the Code were elements of general fairness which should form part of the process in any event but to go beyond that and impose a sanction for failure to comply with the Code went further than Parliament intended.