Tribunal Holds That ACAS Code Applies To Dismissals For “Some Other Substantial Reason”

A recent tribunal case has found that the ‘ACAS code of practice on disciplinary and grievance procedures’  applies to dismissals for ‘some other substantial reason’. Dismissals which do not fall into any of the standard categories (disciplinary, capability, sickness absence, redundancy) are termed under the Employment Rights Act 1996 as for ‘some other substantial reason’ (SOSR) dismissals. In these cases an employer must have an overwhelming reason why an employee must be dismissed and would have been expected to look at any alternatives. Dismissal on the grounds of SOSR is a potentially fair reason for dismissal provided that the stages of this procedure are followed, as failure to do so may constitute an automatically unfair dismissal. In this tribunal case, the employee was the only one of 969 employees to refuse his employer’s proposal that staff take 12 days’ unpaid leave to achieve cost savings. After consulting with him, the company dismissed him and offered him reengagement on the revised terms. The employee rejected this offer, and claimed unfair dismissal. At the hearing, the tribunal – of its own volition – found that the ACAS code does apply to SOSR, on the basis that such dismissals are not explicitly excluded from the scope of the code, and because the introduction states that disciplinary situations ‘include misconduct and/or poor performance’. The company had failed to comply with the code’s requirement regarding written invitations to disciplinary hearings, however, the tribunal found that it had not ‘ambushed’ the employee, and that the dismissal was fair. The tribunal’s decision on this point will not be binding, as it is only a first instance decision, but BWF members must ensure that they follow the code when carrying out SOSR dismissals. Note: The emphasis here is on ‘substantial’. Reasons that have previously fallen into the ‘SOSR’ category include: – imprisonment – an unresolvable personality clash between an employee and a co-worker – if the business moves to another location, or if it’s taken over, and it isn’t possible to employ the individual because of economic, technical or organisational reasons – unreasonably refusing to accept a company reorganisation that changes an individual’s employment terms Members are reminded that extensive guidance on disciplinary and dismissal issues is given in a number of BWF briefing notes which can be found in the employment publications section of the BWF website.