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Acas Code of Practice and SOSR Dismissal

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Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.

Does the increase in compensation due to a breach of the ACAS Code of Practice apply to "some other substantial reason" dismissals?

Yes, says the EAT, on the facts in Lund v St Edmunds School.

Mr Lund had difficulties with his work, in particular, a frustration with the school's computer equipment. He alienated his colleagues, affecting morale. Ultimately he was dismissed as the school stated it had lost confidence in him. The employment tribunal found his dismissal was for "some other substantial reason", but procedurally unfair because he had no warning of the dismissal meeting and no opportunity to appeal. His dismissal was also substantively unfair because no one had attempted to deal with his concerns about the computer system before, as the tribunal put it, "attitudes hardened on both sides".

The tribunal awarded compensation, reducing it on ground of contributory fault. But the tribunal made no uplift for breach of the ACAS Code of Practice pursuant to Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. It considered that the Code of Practice was "silent" as to whether it applies to "some other substantial reason" dismissals. Mr Lund appealed on this point.

The EAT held the tribunal was wrong. The mere fact that the employee was dismissed not for a reason relating to his conduct, but for "some other substantial reason", did not mean that the employee's claim did not concern a matter to which the ACAS code applied. His claim concerned conduct on his part which led his employers to consider whether he should be dismissed, even if it was not his conduct, but the effect of his conduct on others, which was the ultimate reason for dismissal. Nor was it correct to decline to apply the uplift simply because compensation had been reduced on ground of contributory fault. Mr Lund may have contributed to his dismissal but he had done nothing to contribute to the school's failure to act in accordance with the Code. To deny him an uplift on what remained of his compensatory award would have amounted to him being penalised twice over.