Does the Acas code of practice on disciplinary and grievance procedures apply where the redundancy dismissal is a sham?
With any disciplinary /grievance matter, employers must follow fair and reasonable procedures that are in line with the provisions of the Acas Code of Practice on disciplinary and grievance procedures.
The provisions of the code represent the minimum legal requirement to be adhered to.
Employment Tribunal
Any unreasonable failure to follow the code does not itself result in a business organization being liable to legal action but the Employment Tribunal (ET) can take the provisions of the code into account on matters falling within their jurisdiction and proceed to adjust financial awards made in favour of the employee by up to 25% and likewise reduce any employee award by up to 25% where the employee has unreasonably failed to follow the code.
The Code does not apply to dismissals due to a genuine case of redundancy or the expiry of non-renewal of fixed-term contract and incapability dismissals because of ill health (Holmes v Qinetiq Limited [2016] ICR 1016).
In relation to the former from the above, there is now a recent case in the name of Rentplus UK Ltd v Ms Susan Coulson [2022] EAT 81, where the Employment Appeal Tribunal (EAT) had to decide if the code applied to what was perceived as a sham redundancy matter where the employer instigated a reorganization process resulting in more roles being created however the employee was dismissed on redundancy where the facts suggested that the decision was predetermined by the employer and thus not a genuine case of redundancy.
The (EAT) concluded that the redundancy process was a sham and decided that the Acas code of practice on disciplinary and grievance procedures applied to the dismissal that was disguised as a redundancy thus the unreasonable failure to follow the code in good faith by the employer resulted in an uplift of up to 25% in compensation on just and equitable grounds as there was a total failure on part of the employer to apply any of the protections provided for by the Acas Code.
The moral of the story is that if you have very troublesome employees, you cannot dismiss by trying to create a sham redundancy situation and must address employee’s misconduct /performance via formal disciplinary procedures having regard to the Acas code on disciplinary procedures and this equally applies to grievance matters.
The article is for general information purposes only and should not be relied upon as authoritative and correct as of 24th June 2022 however should you require any further assistance on the matter, please do not hesitate to call our advice-line team on 01455 852028.
