This was the question that came before the Employment Appeal Tribunal in the recent case of Holmes v Qinetiq Ltd.
Where an Employee has more than 2 years of service with an Employer, the Employer will need to have a valid reason and follow a fair procedure to dismiss the Employee. Potentially fair reasons for dismissal include redundancy, misconduct and capability. There are two main capability reasons for dismissal – poor performance and ill health absence.
Where an Employee commits an act of misconduct, an Employer will usually initiate disciplinary proceedings in order to deal with that misconduct. This disciplinary action should be undertaken in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Failure to do so is likely to render a dismissal unfair, and can lead to an uplift of up to 25% on any compensation.
The ACAS code on discipline and grievance expressly states that it should be used in the case of misconduct or poor performance. However, it then goes on to refer to ‘capability procedures’. Consequently, a question that arose in the Qinetiq case is whether the ACAS code needs to be followed in an ill health (capability) dismissal.
In this case, the Employee was employed as a security guard from July 1996 until his dismissal in April 2014 following protracted periods of sickness absence. The Employer conceded that the dismissal was unfair as they had failed to obtain a medical report prior to the dismissal. The case came before an employment tribunal in 2015 for a ‘remedies hearing’. The tribunal was asked to uplift the damages since the ACAS code had not been complied with. On 8th April 2015, the tribunal declined to award an uplift on the basis that they concluded that the ACAS code does not apply in these circumstances. The Employee appealed the decision to the EAT.
The EAT considered whether ill health dismissals fall within ‘disciplinary’ situations. Determining the appeal, Mrs Justice Silber found that ‘disciplinary’ is an ordinary English word and said: ‘A disciplinary situation is a situation where breaches of rules or codes of behaviour or discipline are corrected or punished.’ She went on to find that the Qinetiq case was not a disciplinary case since the Employee’s behaviour was not culpable. The Judge went on to draw a distinction between ill health dismissals on the one hand and misconduct cases related to ill health on the other – for example non-genuine sickness absence or failure to follow a sickness notification procedure.
Since the Judge concluded that the Employee’s dismissal was due to ill health and this was not a disciplinary situation, the Appeal against the tribunal decision failed and the Employee was not entitled to an uplift on his damages.
For advice in conducting disciplinary proceedings, dismissing an Employee for ill health absence, or any other area of Employment Law, please get in touch with Andrew Buckley or Natasha Moore by email or telephone on 01234 270600.