ACAS Code Does Not Apply to a SOSR Dismissal

12 September 2016

SOSR = Some Other Substantial Reason.

ACAS (The Advisory, Conciliation and Arbitration Service) helps to resolve employment disputes. ACAS provide a service whereby they act as a go between to help employees and employers find an amicable solution in a dispute, this is known as conciliation.

They will also try to prevent these situations by offering free guides on their website. These guides give advice to employees and employers on the best practice for various matters that may arise at work. The most important of these guides is ‘The ACAS Code of Practice on disciplinary and grievance procedures’ (“the Code”).

Employers in England and Wales should consider this as a minimum guide on the best way to treat you and fellow employees. It should be seen as a standard of fairness. However you should remember that failure to follow it will not necessarily mean that you will be successful in making a claim, or that your employer will be prosecuted. You, as an employee, should also be familiar with it as in some situations you will need to be aware of your responsibilities under the code.

The Employment Tribunal has a duty to review your case in line with the ACAS Code. Whilst the Code has importance in assessing whether an employer is at fault, it has a more significant impact when assessing how much compensation you would be awarded if you were to have a successful claim.

If a Tribunal finds that your employer did not follow the Code, the Tribunal have the choice to increase your compensation by up to 25%, which could be a significant increase. Equally however, if the Tribunal found that you had not reasonably followed the Code then your financial award may be lowered by up to 25%. It could therefore have consequences for both you and your employer.

Broadly speaking, there are 6 potentially fair reasons for you to be dismissed. These are conduct, capability, ill health, redundancy, a statutory restriction or “some other substantial reason”. The last of these reasons is whereby the circumstances for your dismissal do not fall within one of the reasons above, and is typically argued in cases where there has been a breakdown in relationship between you and your boss.  The Code makes it clear that it applies to dismissals relating to misconduct or poor performance, but not to cases involving the non-renewal of a fixed term contract or redundancies, so there is no potential increase to be applied in these cases.

What has been unclear recently, is whether the Code applies to all other dismissals. If you have a personality clash with your boss and you am dismissed unfairly, will you be entitled to claim the Code has not been followed and claim an increase of up to 25%?

According to a recent decision, the answer is no.

In the case of Phoenix House v (1) Stockman (2) Lambis (UKEAT/0264/15/DM) the Claimant’s relationship with her employer broke down after the employer failed to find in the Claimant’s favour in relation to a formal grievance. The employer ultimately considered the working relationship had fallen beyond repair and dismissed the Claimant citing “some other substantial reason”. The first Employment Tribunal agreed with the accusation the dismissal was unfair and subsequently applied the 25% increase to the Claimant’s damages. However, The Employment Appeals Tribunal decided the Code will only apply to cases involving a disciplinary situation (i.e conduct or capacity). This followed previous cases which clarified the Code does not apply for cases involving ill-health dismissals (Holmes v Qinetiq (UKEAT/0206/15/BA).

These two recent cases have provided much needed clarity as to your rights to enforce the Code. It is important to seek legal advice on your situation as to whether the Code should be followed by your employer and if not, how your dismissal should be dealt with.

Our Employment Law Solicitors fully understand that the threat of a dismissal is a stressful time for you and it can be particularly worrying if you think your employer has not treated you fairly throughout the process. Time is limited to make a claim, so the quicker you get expert legal advice the better.

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