The ACAS Code of Practice was designed to “help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace”. Redundancy dismissals and non-renewal of fixed-term contracts are expressly excluded from the ACAS Code of Practice. However, there is no mention of dismissals for ‘some other substantial reason’.
A dismissal will be for some other substantial reason if an employer cannot justify the dismissal on the basis of one of the other one of the other potentially fair reasons for dismissal (redundancy, retirement, conduct, performance and non-renewal of a fixed-term contract). The ‘catch all’ reason for dismissal is not defined in any statutory provisions, however, common examples of dismissals for some other substantial reason are; a refusal to accept changes to terms and conditions of employment, personality clashes, third party pressures, a breakdown in trust and confidence etc.
Until recently, it remained somewhat of a mystery about whether the ACAS Code of Practice should or should not be applied when an employer is contemplating dismissal in such circumstances, as such a dismissal does not relate to a “disciplinary or grievance situation”.
The Tribunal’s recent decision in Cummings v Siemens Communications Limited has confirmed that the ACAS Code of Practice should be applied in dismissals for some other substantial reason. Mr Cummings was one of a number of employees who were asked to sign new terms and conditions of employment requiring them to take 12 days’ unpaid leave. He refused to do so and was dismissed for some other substantial reason. Siemens did not write to Mr Cummings inviting him to a meeting, but instead they telephoned him to invite him. However, they did advise him of his right to be accompanied at the meeting, the reasons for the meeting and he also understood that he may be dismissed at the meeting. The Tribunal found that, whilst they had not complied with the Code in its entirety, Siemens had acted in the spirit of the Code and so the dismissal was fair.
The decision of the Tribunal is quite surprising as dismissals for some other substantial reason are not disciplinary or grievance situations which the Code expressly refers to. As the decision is at Employment Tribunal level only, it does not bind other Employment Tribunals and may well be subject to an appeal. It seems likely that there will be further case law on the applicability of the Code to other situations. Nevertheless, the decision highlights the Tribunal’s willingness to consider the ACAS Code of Practice when dealing with a dismissal within the workplace simply as a matter of good practice. So, even in circumstances when the ACAS Code does not expressly apply, employers would still be well advised to consider the Code.
If you are dealing with a disciplinary or grievance situation, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or [email protected]