ACAS code doesn’t cover ill health dismissals

  • By The Alchemist About Town
  • 02 Feb, 2017

People stuff  #employmentlaw #EAT #illhealth

Ill-health at work can be a sensitive issue especially when handling long term or repeated absence.

Tribunals have sympathy for employees with health issues, even where no disability is involved, and expect employers to take steps to obtain medical evidence, to consult with employees and only dismiss where “reasonable”. The difficulty with dealing with absence is treading the line between making reasonable adjustments for someone who is genuinely sick and not tolerating anyone trying to use the system.

Not making reasonable adjustment for someone’s illness – whether physical or mental – could lead to a claim and can be tricky because there are lots of different strands – you can directly discriminate, indirectly discriminate, there can be discrimination arising from a disability, and the way you build a defence depends of what type of claim it is.

Should the question of a potential dismissal arise, it is worth taking into consideration a recent Court ruling, specifically that the ACAS code of practice on disciplinary and grievance does not extend to dismissals on the grounds of ill-health.

In “ Holmes v QinetiQ ” Holmes (who was disabled) worked as a security guard. Following extensive absences, he was dismissed, as it was felt he could not do his job. At the tribunal, Qinetiq agreed it had treated him unfairly and had failed to obtain up-to-date health reports.

Homes won compensation but the tribunal did not uplift the ward by 25%, which tends to happen if an employer has not complied with the ACAS code, and he appealed. 

The appeal was based on three grounds of which one is applicable here - that the ACAS code of practice applied in the circumstances and so an uplift was available. All three, however, failed.

The Employment Appeal Tribunal (EAT) did not even consider any specific breaches of the code, choosing to focus on applicability and found that:

  • The Code will only apply if there is 'culpable conduct' by the employee
  • It discussed whether the word 'disciplinary' should be given a wide meaning to include any detrimental action taken against an employee (including dismissal for ill health) or
  • A narrow meaning restricting it to punishing an employee or correcting their actions. 

The conclusion was that the narrow interpretation is correct.
When the ill health leads to the employee performing his role to an unsatisfactory standard there would be no culpable conduct. It was hard to see any circumstances in which it would be justified to apportion blame to an employee who was performing poorly only due to his genuine ill health.

On the other hand, when an employee fails to comply with the relevant sickness procedures or where the circumstances give rise to a suspicion that the ill health is not genuine, then there is an allegation of culpable conduct, the severity of which does not matter, the mere presence is enough for the Code to apply.
In these circumstances, the Code applies so far as the culpable conduct is concerned. Holmes was therefore not entitled to an uplift for breaching the Code.


So, in practice:

  • The EAT stated that the ACAS Code applies to deal with the culpable conduct and not the lack of capability so when this initial investigation is ongoing the Code will continue to apply. 
  • As soon as the issue becomes restricted purely to capability due to ill health then the Code does not have to be followed, allowing greater flexibility for employers.
  • The difficulties arise when there is poor performance involved as this must first be investigated in full, often with the use of a disciplinary procedure.
  • If there is any likelihood that the disciplinary procedure should be followed then it must be and it is important to closely scrutinise attendance and performance records before deciding that the Code does not apply.

The People Alchemist Blog

By The Alchemist About Town 22 Sep, 2017
I am so utterly delighted that my book is now out, available to order both on paperback and on Kindle edition just in time for Business Women's Day - YES!!!!!! :-) 

STOP IT! It's all in your head   is my labour of love and my way to encourage, inspire and empower women to achieve what they want professionally and not be confined by societal, religious, family paradigms of what " women should do/are like" and, most importantly, the restrictions in their head.
If that is being CEO of a Global Company or a stay-at-mum or Director of Paperclip ( whatever grabs your fancy) so be it.

Writing this book was also a personal challenge ( the 30 days thingy) which confirmed to me once and for all that you can really do whatever you set your mind to, if you really want to that is.

Couple of tips for writing a book from me:
  • write about what you are passionate about, you know more than you think.
  • free-write about the parts/chapters in the book you like the most and you are most interested in first - that will give you a great boost at the beginning - you can edit and add the boring bits later - by then most of the book will be almost there
  • keep your own voice - write as you speak so to speak ( people do need to understand you though..)
  • keep an open mind, ideas will flow into you mid-way through the project
  • a deadline and going public is good to beat procrastination ( but if that stresses you out too much don't do it) - the deadline certainly helped me.
You can do it too!!!

If anyone would like to be part of the book launch, the event is live on Eventbrite and you can buy an Early Bird ticket now:
SMASH YOUR CEILING - #STOPITBookLaunch 
Thursday 12 October at 18.30
Business Design Centre
Islington
London

To pre- e-meet other super fab women in business attending the event, please use the following hashtags:
#SMASHYOURCEILING
#STOPITBookLaunch
#BDCWorks

I'm so excited about this book and I genuinely hope you will like it- I hope to meet you soon, in person or through the pages of my book.

Laura x


#Hustle #GirlBoss #SmashThatCeiling
  #SmashYourCeiling
STOP IT! It's all in your head 
#dreambig #believe #youcan



By The Alchemist About Town 19 Sep, 2017
The time is getting closer and closer to the release of   STOP IT, It's all in your head   my new book ( 22 September for Business Women's Day - US) .

I have now  received the proof copy of the paperback which looks absolutely fabulous: a couple of things to correct but overall I am super happy with the result.
A lot of marketing to do now between Facebook, Twitter, Instagram and Google+ ( which is PS: looking like more work than the actual writing of the book).

The book event/launch/talk is live on Eventbrite and you can buy an Early Bird ticket now:
SMASH YOUR CEILING - #STOPITBookLaunch 
Thursday 12 October at 18.30
Business Design Centre
Islington
London

To pre- e-meet other super fab women in business attending the event, please use the following hashtags:
#SMASHYOURCEILING
#STOPITBookLaunch
#BDCWorks

I'm so excited about this book and I genuinely hope you will like it.

Laura x


#Hustle #GirlBoss #SmashThatCeiling
  #SmashYourCeiling
STOP IT! It's all in your head 
#dreambig #believe #youcan



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