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22 March 2013

Full compliance with Acas Code not always necessary

The EAT has ruled that an employer who had not fully complied with the disciplinary process set out in the Acas Code of Practice, had not unfairly dismissed an employee.

The claimant in this case, Mr Buzolli, was a driver for the respondent.  He had been issued with a ‘stage three’ written warning by the respondent after missing work due to being under the influence of alcohol.  The respondent’s disciplinary procedure expressly stated that any further breaches of conduct in the 12 months that the warning remained on the file would lead to dismissal from the company.

Six months later, Mr Buzolli drove his vehicle into a bridge.  Following a disciplinary hearing, Mr Buzolli was dismissed with one week’s pay in lieu of notice. He unsuccessfully appealed against the decision to dismiss him.

Mr Buzolli’s claim for unfair dismissal was dismissed by the employment tribunal, which ruled that the respondent had complied with the Acas Code in their disciplinary process.

The claimant appealed, claiming that the respondent was in breach of the Code for the following reasons:
1. The original warning letter did not contain a statement that further misconduct might result in dismissal;
2. The warning letter was not referred to in the subsequent disciplinary hearing or dismissal letter; and
3. The letter inviting the claimant to the final disciplinary hearing did not put him on notice that the hearing might result in his dismissal.

The EAT dismissed the appeal and confirmed the tribunal’s decision that the dismissal was fair, although it acknowledged the procedural flaws identified by claimant above. 

The respondent’s disciplinary procedure made it clear enough that, despite the defects in the letters, such actions as the claimant had committed could result in dismissal.  In the EAT’s view, it was “a matter of common sense” that driving into a bridge causing substantial damage could result in dismissal and the claimant should have known that he was effectively under a final warning for 12 months. 

The EAT also pointed out that the claimant did not raise any issues with the procedure at his appeal hearing, and had acknowledged that the dismissal came about because of the previous incident on his record.  It was therefore not really feasible for him to claim that he did not know that he might be dismissed after the second disciplinary hearing.

The EAT supported the tribunal’s view that despite the purported breaches of the Code, when viewed at in the round the respondent had acted in compliance with it, as the disciplinary policy was sufficiently clear as to the process and the consequences that would follow.

Comment

This case demonstrates that a failure to follow the Acas Code to the letter will not automatically result in an unfair dismissal.  However, the respondent in this case was assisted by the fact that its disciplinary policy was very clearly drafted and was compliant with the Code.  To avoid a challenge to the procedural fairness of a dismissal, it is generally much better for employers to ensure that its disciplinary process is carried out fully in accordance with the Acas Code.

A copy of the EAT judgment is available here