Ill Health Dismissals

George Heron

George Heron

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Phone 01952 566918

29 June 2016

Holmes v QinetiQ

The Employment Appeal Tribunal (EAT) have held that the Acas Code of Practice is not applicable to ill health dismissals.

The case in question concerned an employee who is disabled and was dismissed after 8 years of service. He brought a claim for unfair dismissal, a claim which was conceded by the employer. The employer had failed to obtain an up to date Occupational Health report on the employee’s ability to return to work following an operation in the month of his dismissal.

An unreasonable failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures can entitle the employee to an uplift in their compensation of up to 25%. The employer did not follow the Code in this case and it was the employee’s contention that the Code should have applied. Accordingly, the employee put forward that their compensation should be subject to the uplift.

The EAT agreed with the initial decision of the Employment Tribunal and has held that the Code “does not apply to ill health dismissals”. The reasoning behind this is that the Code is limited to “matters relating to culpable misconduct or culpable poor performance”. Incapacity on medical grounds is therefore not encompassed by either of these as the employee cannot be said to be culpable in relation to either conduct or performance. Other than the effects of his illness, he was able to perform his job.

This decision is one that is favourable to employers as it confirms that, where a termination is solely due to the ill health of the employee, there is not a requirement to follow the Acas Code on Disciplinary and Grievance Procedures. A disciplinary issue related to ill health, such as not following absence reporting procedures, would still be subject to the Code.

Of course, it is still essential that a fair process is followed when you are looking to terminate an employee’s contract by reason of ill health. At Alpha, we have a vast experience in providing bespoke, practical advice on HR and employment law issues. This includes handling dismissals related to sickness absence. We are proud of our commercial outlook and do not sit on the fence. If you would like to have Alpha on your side, please feel free to contact us.

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