In one of the latest tribunal cases reported by XpertHR, an employment tribunal has held that the “Acas code of practice on disciplinary and grievance procedures” applies to dismissals for “some other substantial reason”.
Mr Cummings refused to agree to his employer’s (Siemens Communications) proposal that staff take 12 days’ unpaid leave to achieve cost savings. Out of 969 employees, 968 agreed, and Mr Cummings was the only one who objected. After consulting with him, the company dismissed him and offered him reengagement on the revised terms. Mr Cummings rejected this offer, and claimed unfair dismissal.
At the hearing, the tribunal - of its own volition - considered whether or not the Acas code applies to dismissals for some other substantial reason (SOSR). It found that the code does apply, 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” (emphasis added).
Although the company failed to comply with the code’s requirement regarding written invitations to disciplinary hearings, the tribunal found that it had not “ambushed” Mr Cummings, and that the dismissal was fair.
The tribunal’s reasoning on why the code applies to SOSR dismissals is brief and doesn’t seem unimpeachable: the code obviously doesn’t apply to retirement dismissals, even though it doesn’t expressly state that fact. Further, the provisions in the code that deal with warnings and so on don’t fit with SOSR dismissals. The tribunal’s decision on this point will not be binding, as it is only a first instance decision, but it will be persuasive, and employers would be well-advised to follow the code when carrying out SOSR dismissals until there is appellate authority stating otherwise.
XpertHR’s tribunal reporting service provides regular summaries (and, for subscribers, PDF judgments) of interesting tribunal decisions. This week’s other cases involve: