In the recent case of Phoenix House Ltd v Stockman & Anor, the EAT said that the ACAS Code of Practice on Disciplinary and Grievance Procedures did not apply to a dismissal for ‘some other substantial reason’ (SOSR).
The case itself was a dismissal based on irretrievable breakdown of relationships following a dispute with colleagues. The employer dismissed based on the breakdown – citing ‘some other substantial reason’ as the potentially fair reason (rather than, for instance, conduct).
The EAT ruled, in line with the tribunal, that the dismissal itself was still unfair because the employer had asked the employee to prove that relationships had not broken down rather than assuming an impartial position and assessing both sides. Additional information that had been provided to the employer had been considered without discussion with the employee and therefore she had not had a fair opportunity to represent herself. The decision to dismiss based on these facts was not reasonable. The employee was never given the option to show that the working relationship could be rectified.
When considering whether an additional award should be made based on a breach of the ACAS Code of Practice, the EAT stated that the code was not applicable in an SOSR case.
The code should be followed in relation to hearings for misconduct and performance and failure to do so can incur additional awards being made by the tribunal. It does not have to be applied in relation to redundancies and non-renewal of contracts, but remains useful guidance.
If you have any questions in relation to performance management, misconduct, redundancies or dismissals, please speak to your HR Advisor or call 01924 827869.