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Acas Code does not apply to Ill Health Dismissals 23 June 2016
The Employment Appeal Tribunal has held that the Acas Code of Practice on Disciplinary and Grievance Procedures does not apply to ill health dismissals.
In the case Holmes v QinetiQ the Claimant was dismissed on the grounds of ill health. It was conceded that the dismissal was unfair because of the failure to obtain an up to date occupational health report. At the remedy hearing, the Claimant contended that the Acas Code applied and that due to the unreasonable failure to follow the code he was entitled to an uplift under s.207A (Effect of failure to comply with Code: adjustment of awards) of the Trade Union and Labour Relations (Consolidation) Act 1992 . The EAT agreed with the employment tribunal that the Acas Code did not apply. Rather, the Acas Code applies to all cases where an employee's alleged act or omissions involve culpable conduct or performance on their part that requires correction or punishment e.g. misconduct and poor performance. It was difficult to see how ill health fell into this category. The position would be different where the ill health leads to a disciplinary issue such as a failure to comply with sickness absence procedures. In that situation the disciplinary procedure is invoked to address alleged culpable conduct.
With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.
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Report on courts and tribunal fees 23 June 2016
The House of Commons Justice Committee has published a report on courts and tribunal fees which considers changes introduced in recent years as well as proposals for future changes.
Much of the Report deals with the impact of fees introduced in July 2013 for bringing cases before employment tribunals, which have been particularly controversial. For claims such as unfair dismissal, discrimination, whistleblowing and equal pay, fees of up to £1,200 are charged to those seeking to challenge their employers.
The introduction of these fees led to an undisputed and precipitate drop in the number of cases brought, approaching 70%. According to the report, the startling drop was not predicted by the government.
In oral evidence to the Commission considerable emphasis was placed on the fact that in the year beginning in April 2014, Acas had dealt with 83,000 early conciliation cases.
However the Commission state in their report that they heard a considerable amount of evidence that, far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee. The report concludes that a contribution by users of the courts to the costs of operating those courts is not objectionable in principle, but questions what is an acceptable amount to charge taking into account the need to preserve access to justice. This report is not to be confused with the post-implementation review of fees , which the government had originally intended to complete by the end of 2015. The Committee describe this delay as unacceptable and detrimental to their work, and have called for the review to be published immediately. The review was announced as starting mid-2015 and to consider how effective the introduction of fees has been at meeting the original objectives, while maintaining access to justice. The original objectives were:
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