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Acas code may not apply to dismissals for some other substantial reason

Posted on 18th October 2016
Case law

Despite the fact that a disciplinary procedure had been followed, the Acas code on disciplinary and grievances did not have to be followed as the dismissal was due to a breakdown in the relationship.

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the employer should fairly consider whether or not the relationship has deteriorated to such an extent that the employee cannot be reincorporated into the workforce without unacceptable disruption

Phoenix House Ltd v Stockman [EAT] 2016

The Facts

Following a restructure, Ms Stockman’s post was removed.  She applied for various positions and was given a more junior role. 

Ms Stockman felt unfairly treated in the recruitment process and raised a grievance.  She confronted her manager during another meeting and subjected to the disciplinary process for misconduct. The grievance and disciplinary hearings took place whilst Ms Stockman was on sick leave. Ms Stockman’s grievance was dismissed and she received a 12 month written warning for misconduct.

Ms Stockman appealed unsuccessfully.

A mediation meeting was held unsuccessfully and Phoenix then considered whether the working relationship had irretrievably broken down. Ms Stockman was invited to a meeting to consider this.  Ms Stockman, during this meeting, said she wanted to return and believed she could work with her manager. 

Phoenix concluded there was no way for her to come back to work and Ms Stockman’s contract was terminated. 

An employment tribunal found that the dismissal was unfair as:
  • The procedure adopted was not fair and did not comply with the Code.
  • Phoenix had started from the position that the relationship had broken down and put the burden on Ms Stockman to prove otherwise.
  • Ms Stockman had not had an adequate opportunity to put her case or to effectively challenge the assertions that had been made against her.
  • The decision that there had been an irretrievable breakdown in the relationship was outside the range of reasonable responses by an employer to the situation in which the parties found themselves.

The Decision

The Code did not need to be followed in this case. 

Although a disciplinary procedure had been invoked, the EAT stated what was required when an SOSR dismissal is contemplated is that the employer should fairly consider whether or not the relationship has deteriorated to such an extent that the employee cannot be reincorporated into the workforce without unacceptable disruption. Certain elements of the Code are capable of being, and should be, applied, for example giving the employee the opportunity to demonstrate that she can fit back into the workplace without disruption, but it was not intended by Parliament that an employer could be penalised for not complying in cases such as this.

Comment

Unlike the case of Holmes, this case did not look at whether the conduct was culpable or not; simply what was intended when the legislation was enacted. This is to be welcomed!

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