Unfair Dismissal: Some Other Substantial Reason – Part three

15 October 2014

In the final part of our series on SOSR dismissals, we look at the procedure necessary to effect a fair dismissal.

In 2010 the Employment Tribunal (ET) in Cummings v Siemens Communications Ltd dealt with whether the ACAS Code should be applied to SOSR dismissals.  The ET found that even though SOSR dismissals are not expressly covered by the Code, they did nevertheless apply.  As this is a Tribunal decision it is not binding, however, it serves as some guidance for employers and has led to ET’s and the Employment Appeal Tribunal (EAT) to develop the position. We look at these below.

In 2013 the position in respect of ACAS and SOSR dismissals was further clarified in Lund v St Edmund’s School.  In this case Mr Lund was dismissed without notice following conduct and capability issues which lead to a breakdown in trust and confidence in the employment relationship.  The reason for the dismissal was established as SOSR.

At first instance the ET found that the ACAS Code did not apply as Mr Lund had contributed to his own dismissal and because the dismissal had been due to SOSR.  On appeal, however, the EAT concluded that the Code could apply to SOSR.  Furthermore they found that as Mr Lund had not contributed to the employer’s failure to comply with the Code, only to his own dismissal – of which he had already been penalised by a 65% reduction of the compensatory award, the Code was still applicable.  This meant that Mr Lund was eligible for up to a 25% uplift to his award due to the employer’s failure to comply with the ACAS Code.

The EAT found that the ACAS Code was intended to apply to occasions where disciplinary action was appropriate, but not necessarily where dismissal would result.  Emphasis was laid on the initiation of the process rather than the outcome, i.e. the dismissal of an employee due to conduct or capability did not trigger the requirement to comply with the ACAS Code, rather the conduct or capability of the employee which leads to disciplinary proceedings, or should do, triggers the requirement to comply with the Code.

Failure to comply with the ACAS Code will not automatically result in a finding of unfairness however it will be taken into account when a Tribunal is considering whether the dismissal was fair in all the circumstances.  If the Code does apply, an ET can adjust compensation by +/- 25% depending on the circumstances. To ensure optimal protection from potential claims for unfair dismissal an employer should therefore invoke the ACAS Code in parallel with its own disciplinary procedures when issues of conduct or capability arise.

If there are any questions on SOSR dismissals or you have a matter that you would like to speak to us on, please contact 0203 178 5360.