Good afternoon, last week our newsletter examined a fairly eventful month for employment law (whatever you do don’t mention the referendum), there were features on Modern Slavery, flexitime as well some other interesting topics. This week’s case concerns ill-health dismissals and tribunal awards.

Today’s questions:

Can an employee who wins their unfair dismissal claim be awarded an uplift by the Tribunal if the employer failed to follow the ACAS Code of Practice?

Should they be awarded an uplift if the unfair dismissal wasn’t conduct related?

Mr Holmes, the Claimant, was a security guard for Qinetiq Ltd, the Respondent, and had been employed by them for nearly 18 years. Due to hip, back and leg problems the Claimant had large periods of time off sick towards the end of his employment.

Due to these absences the Respondent initiated capability proceedings against the Claimant. However it failed to obtain an up to date occupational health report which would have confirmed the Claimant would have been able to return to work following an operation.

The ET held, and the Respondent conceded, that the dismissal was unfair. However, despite not following the ACAS Code of Practice for Disciplinary and Grievances the ET did not award the usual uplift to the Claimant’s award.

The ET’s reasons for this were:

– The Code does not apply to dismissals relating to ill health

– Medical incapacity is not a conduct issue

– But for his illness the Claimant’s conduct or performance were not in question

The Claimant appealed and the EAT rejected the appeal. It held that as the Claimant was dismissed due to ill health and not due to performance and/or conduct then despite the dismissal being unfair the ACAS uplift was not applicable as it was not a disciplinary or grievance issue.

The takeaway point:

A dismissal due to ill health will not be liable for a tribunal award uplift as it is not conduct related. However, as the dismissal is still unfair some compensation is still due.

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