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Acas code does not apply to dismissals for genuine sickness absence

Posted on 14th September 2016
Case law

The Acas Code on disciplinary and grievances does not apply where no disciplinary procedure was invoked and there was no suggestion of breach of rules of conduct or discipline.

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There is a distinction between dismissal for poor performance as a result of genuine illness and situations where ill health leads to a failure to comply with sickness absence procedures

Holmes v Qinetiq Limited [EAT] 2016

The Facts

Mr Holmes was a security guard.  He had extended absences because of back, hip and leg problems.  He was dismissed on ill health grounds on the basis that he was no longer capable of doing his job.

His employer, Qinetiq, agreed his dismissal was unfair as it did not obtain an up-to-date occupational health report about his ability to reliably attend work prior to dismissal.

Whether the Acas Code of Practice on Disciplinary and Grievance Procedures applied and whether Mr Holmes compensation could be increased by up to 25% had to be considered. 

The employment tribunal did not award an uplift as there was no disciplinary component.

The Decision

The EAT agreed.

The EAT drew a distinction, in ill-health situations, between dismissal for poor performance as a result of genuine illness or injury and situations where ill health leads to a failure to comply with sickness absence procedures or an allegation that the ill health is not genuine. In the former ‘disciplinary action’ would not be justified which means that the Code does not apply. In the latter, the disciplinary procedure would be invoked to address the alleged culpable conduct on the employee's part.

In this case, no disciplinary procedure was invoked and there was no suggestion that Mr Holmes had breached rules of conduct or discipline.  Therefore the Code did not apply.

Comment

This decision confirms that employers who dismiss for genuine ill health, where there is no issue of poor performance, are not bound to follow the Code.

The decision also clarifies that the Code will only apply to poor performance where there is some element of culpability on the part of the employee.

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