Mr H was employed as a security guard at Q with almost 20 years service, suffering from pains to his back, hips and legs. His employer took the view that he was no longer capable of carrying out his role for health reasons and, in April 2014, he was dismissed. Also in April 2014 he had an operation which intended to restore his health to such a position that he could return to work.
Q had engaged occupational health throughout and held reports which said that he was not fit to complete his role. They failed, however, to obtain a further report once his operation had taken place and as such relied on out-dated evidence when reaching their decision that he was incapable of performing his role. Consequently, they failed to consider whether he would still be unfit after the operation. The dismissal was therefore unfair and it fell to consider remedy.
The Tribunal was asked to determine the size of the award to be given to Mr H. He had contended that he was due an uplift for failing to follow the Code. This is an established principal of law that is contained in section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992. Where there is a failure to follow the Code, the Tribunal can award an increase of up to 25%.
They reached the decision that the Code did no apply to a dismissal for ill health and Mr H appealed.
Mr H appealed.
The appeal was based on three grounds of which just one is material here – that the ACAS code of practice applied in the circumstances and so an uplift was available. All three, however, failed.
The EAT did not even go so far as to consider any specific breaches of the code, choosing to focus on its applicability or otherwise.
It found that the Code will only apply if there is ‘culpable conduct’ by the employee. It discussed whether the word ‘disciplinary’ should be given a wide meaning to include any detrimental action taken against an employee (including dismissal for ill health) or a narrow meaning restricting it to punishing an employee or correcting their actions. The conclusion was that the narrow interpretation is correct.
The Judge was at pains to draw the distinction between different types of poor performance – those with and those without the presence of ‘culpable conduct’.
When the ill health leads to the employee performing his role to an unsatisfactory standard there would be no culpable conduct. It was hard to see any circumstances in which it would be justified to apportion blame to an employee who was performing poorly only due to his genuine ill health.
On the other hand, when an employee fails to comply with the relevant sickness procedures or where the circumstances give rise to a suspicion that the ill health is not genuine, then there is an allegation of culpable conduct. The severity of the culpable conduct does not matter, the mere presence is enough for the Code to apply. In these circumstances, the Code applies so far as the culpable conduct is concerned. Mr H was therefore not entitled to an uplift for breaching the Code.
It is welcome clarification for employers who dismiss for genuine ill health where there is no unrelated poor performance. The difficulties will continue to arise when there is poor performance involved as this must first be investigated in full, often with the use of a disciplinary procedure. The Judge stated that the Code applies to deal with the culpable conduct and not the lack of capability so when this initial investigation is ongoing the Code will continue to apply. As soon as the issue becomes restricted purely to capability due to ill health then the Code does not have to be followed, allowing greater flexibility for employers.
The risk is that if there is any likelihood that the disciplinary procedure ought to have been deployed then it must be. Now, more than ever, it is important to closely scrutinise attendance and performance records before deciding that the Code does not apply.