The Employment Appeal Tribunal has usefully confirmed for us in Lund v St Edmund’s School, Canterbury that in cases where an employee is dismissed for some other substantial reason (SOSR) which has some overlap with conduct then the Acas Code of Practice on Disciplinary and Grievance Procedures should be adhered to. In this instance the EAT believed that the disciplinary procedure should have been invoked in the first place (rather than going down the SOSR route) and that, in itself, meant that the Code should apply. Of course, this does not mean that the Code should apply in all SOSR dismissals. We are talking about cases where there is a live issue about conduct and where a disciplinary process should really have been invoked.
On the facts in this case, there was a breakdown in the relationship between Mr Lund, his colleagues and his employer. The employer was concerned that his behaviour had alienated him from his teaching colleagues. As a teacher of graphics and design he was unhappy with the computer equipment which he was required to use. Even when the equipment was replaced he regarded the new computers as still unsatisfactory. He dismantled the system and refused to allow a consultant who was engaged to report on his teaching to observe his class. He went off with stress and a consultant psychiatrist concluded that his stress was a consequence of his frustration with the computer system. However he was deemed fit to return to work. His suspension was not lifted and at a meeting in October 2010 he was handed a letter notifying him of his dismissal.
His unfair dismissal claim succeeded. It was procedurally unfair because he had no warning of the purpose of the meeting on 19 October. It was also substantively unfair because no-one had attempted to deal with his concerns about the computer system before “attitudes hardened on both sides”. His dismissal was resultingly for some other substantial reason. He was awarded £19,413 for wrongful dismissal and £18,329.05 for unfair dismissal. However his basic and compensatory awards were reduced by 65% to take into account that his behaviour had contributed to his dismissal. Mr Lund appealed against the level of compensation awarded.
Failure to apply the Code of Practice can result in a tribunal increasing an award by up to 25%. The Tribunal in this case did not do so. The EAT tackled the issues as follows.
…the tribunal made it plain why it did not apply the uplift: Mr Lund had “contributed so substantially to his own dismissal”, and his dismissal had been for “some other substantial reason”. But what is not entirely clear is how the tribunal linked those two reasons to the language of section 207A. Presumably the fact that Mr Lund had contributed so substantially to his dismissal made it not “just and equitable” to increase Mr Lund’s award. And the fact that his dismissal had been for “some other substantial reason” presumably meant that section 207A had not been engaged because, in the tribunal’s view, the Code of Practice did not apply to such dismissals.
We do not think that it was open to the tribunal to deny Mr Lund an uplift on his award on the basis that he had contributed substantially to his dismissal. We do not see why a provision which is supposed to penalise employers for failing to comply with a code of practice should be disapplied in a case in which the employee has not contributed to that non-compliance. Mr Lund may have contributed – and contributed substantially – to his dismissal, but he had done nothing to contribute to the School’s failure to act in accordance with the Code of Practice. Moreover, the fact that Mr Lund had contributed substantially to his dismissal had resulted in both his basic and compensatory awards being reduced by 65%. To deny him an uplift on what remained of his compensatory award on that account amounted to him being penalised twice over, and was an example, we think, of impermissible double accounting.
Whilst the Code is silent about its application to SOSR dismissals (stating that it applies to conduct and performance dismissals and not to dismissals for redundancy or expiry of a fixed term) a tribunal in Cummings v Siemens Communications Ltd held that it applied to such terminations. Now we have Employment Appeal Tribunal authority on the point. However, as ever, this does not necessarily make life easier for employers since it will not always be clear in which circumstances the disciplinary procedure should have been invoked. Sometimes such situations are clear cut, more often than not they are not. So, as the headline says, employers in any doubt as to whether the Code might apply should probably just play safe and avoid the risk of an uplift to any possible award.