Sometimes employers will follow a one-size fits all process for handling conduct, poor performance and attendance issues in the workplace. However, a recent decision of the Employment Appeal Tribunal (EAT) has reiterated that it is not necessary, nor appropriate, to adopt the same form of process for these different subjects.
In Holmes –v- QinetiQ, the employment tribunal found that Mr Holmes had been unfairly dismissed because although his dismissal was on the grounds of ill health, the employer had not obtained an up-to-date medical report, which in the circumstances of the case, was a significant error.
When it came to awarding compensation, a dispute arose over whether the employer was under an obligation to follow the ACAS code in carrying out this dismissal. Mr Holmes tried to persuade the tribunal and the EAT that it was appropriate for the ACAS Code of Practice on Disciplinary and Grievance Procedures to apply, as he was seeking to obtain an uplift of 25% to his compensation for unfair dismissal (such uplift potentially being obtainable if there is an unreasonable failure to follow the Code in applicable circumstances). Ultimately the EAT decided that the employer was not so obliged.
The EAT concluded that the Code was applicable only to culpable conduct or performance matters, and not ill health, where the issue is not necessarily one of culpability. Where illness is genuine, people cannot help being ill and the Code does not apply.
What does this mean for employers?
The implications of this decision are that if an employer does not convene a meeting and put materials under consideration to the employee in advance, the dismissal won’t necessarily be unfair, nor will an uplift to compensation be applied if it is found to be unfair, with reference to the ACAS Code. That being said, care needs to be applied by the employer, for the employer needs to follow its own procedures and departing from its own procedures may nevertheless prove problematic.
In addition, a good, fulsome procedure can often ensure that the right decision is reached because there is a significant chance that all necessary information will be brought out and articulated before a decision is taken.
It may, however, be the case that Holmes can give employers some comfort when faced with tricky situations such as being unable to convene a meeting due to an employee’s continued absence.
Get in touch
Before taking a decision in any such tricky situation, it is best to take advice and we can help ensure that the risks are properly managed. We can also help by reviewing your policies and procedures on ill health absence management, to ensure that you feel comfortable that you have the best procedures in your organisation, matching your requirements. Please contact one of our employment team to discuss further.