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For the first time, in Holmes v Qinetiq Ltd (UKEAT/0206/15/BA, 26 April 2016, Simler P) the EAT has addressed the question of whether or not the power under section 207A TULRCA 1992 to increase or decrease an award of compensation by up to 25% for failure to comply with the requirements of any relevant ACAS Code of Practice extends to dismissals on grounds of ill health.

The Claimant was dismissed on grounds of ill health on the basis that he was no longer capable of performing his job. He claimed compensation for disability discrimination and unfair dismissal. The ET ruled that the ACAS Code only applies to dismissals involving culpability.

Upholding the ET, the President of the EAT, Mrs Justice Simler, held at para.15 that: "… properly construed the Code of Practice does not apply to internal procedures operated by an employer concerning an employee’s alleged incapability to do the job arising from ill health or sickness absence and nothing more. It is limited to internal procedures relating to disciplinary situations that include misconduct or poor performance but may extend beyond that, and are likely to be concerned with the correction or punishment of culpable behaviour of some form or another.”

Implications of the decision

Employers who dismiss employees for reasons which do not merit disciplinary action or give rise to a disciplinary situation are not required to follow the ACAS Code of Practice on disciplinary procedures (although it is often good practice to do so). As a result, the uplift in compensation under section 207A(2) is not available to such claimants.

Mohinderpal Sethi appeared for the successful respondent company.He is author of Employment Tribunal Remedies (4th Edition, Oxford University Press) and has particular expertise in very high value compensation claims.

The transcript of the Judgment published on 17 June 2016 can be found HERE.

Posted: 21.06.2016 at 14:13
Tags:  Cases  Employment Law
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