In this case, the Claimant who was employed as a security guard by QinetiQ was dismissed on grounds of ill health. The Claimant bought successful claims for unfair dismissal and age discrimination. The Employment Tribunal held that the employer had unfairly dismissed him as it had failed to obtain an up to date Occupational Health report about his ability to reliably attend work following an operation. The Claimant argued, at the remedy hearing that the Acas Code applied and that his compensation should include an uplift for the employer’s failure to follow the Code pursuant to s.207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TUL(C)A). The Employment Tribunal disagreed. It held that the Code did not apply.

The Claimant appealed to the EAT. The EAT confirmed that the Employment Tribunal had not erred in failing to apply the Acas Code as it applied to issues of capable conduct such as misconduct and poor performance. There was no contention of the Claimant having culpable conduct. No disciplinary proceedings had been commenced. Save for the effects of the Claimant’s illness, he was able to perform his role. The appeal failed.

The Acas Code may apply where as a result of an employee’s ill health the employee fails to comply with its obligations in respect of sickness absence reporting as this is likely to be culpable conduct. S.207A of TUL(C)A provides that a Tribunal may award an uplift of up to 25% of any compensation awarded for an employer’s failure to follow the Acas Code.

We regularly advise on issues relating to ill health, conduct or poor performance and processes to be followed to minimise employment tribunal claims. If you would like some advice on these issues, please don’t hesitate to contact us.

The above case report is not a substitute for legal advice, which should be sought on the individual circumstances of your case.