Two recent cases have helped to clarify the circumstances where a failure to comply with the acas Code of Practice on Disciplinary and Grievance Procedures can lead to a 25% uplift in the award granted by an Employment Tribunal.

First of all, the EAT in Holmes v QinetiQ held that the acas Code does not apply to ill health dismissals. The dismissal in this case was conceded as being unfair by the employer, arising from their failure to obtain an up-to-date medical report. The claimant was, however, unsuccessful in arguing (at the remedy hearing) that the award should be increased by 25% arising from an unreasonable failure to follow the acas Code. The EAT confirmed that the Code applies to cases of misconduct and poor performance.

Hot on the heels of Holmes v QinetiQ, we also have the EAT dealing with a similar issue in Phoenix House Ltd v Stockman (and with the same outcome). In the Stockman case, the EAT held that the 25% uplift for non-compliance with the acas Code did not apply to a ‘some other substantial reason’ (SOSR) dismissal arising from a breakdown in a working relationship.

These cases provide helpful clarity concerning the applicability of the acas Code. It is, however, important to note that all of the circumstances of the particular case will be taken into account by the Tribunal in deciding whether the acas Code applies. In Holmes v QinetiQ, had the employee’s ill health lead to a disciplinary issue (such as a failure to comply with a sickness absence procedure) then the acas Code would have applied to the disciplinary process. Similarly, in Phoenix House Ltd v Stockman, had the employer initiated disciplinary proceedings arising from a misconduct issue but this then lead to an eventual SOSR dismissal (on grounds of a breakdown in the employment relationship) then the acas Code might well have applied to the dismissal. Of course, in such complicated dismissal scenarios, we would recommend that you seek legal advice.