In Holmes v Qinetiq Ltd the Employment Appeal Tribunal (EAT) has confirmed that the ACAS code on disciplinary and grievance procedures does not need to be followed when dismissing on the grounds of ill health if there is no evidence of wrongdoing on the part of the employee. EAT confirmed that the code only applies when an employee has committed an act or failed to commit an act, both of which can be regarded as blameworthy conduct. Poor performance can result in actionable conduct, but the purest form is misconduct or gross misconduct.
Mr Holmes was a security guard who worked for Qinetiq security company for over 17 years. Qinetiq dismissed Mr Holmes in 2014 on the grounds that he was of ill health and was no longer capable of performing his role.
This, combined with the fact that Mr Holmes had a number of substantial absences from work for pain in his legs, back and hips, was the reason for his dismissal.
The Employment Tribunal awarded Mr Holmes compensation on the basis that he had been unfairly dismissed and was subjected to disability discrimination.
The basis of Mr Holme’s argument was that Qinetiq had failed to obtain and take into consideration an up-to-date occupational health report, which would have outlined an operation he underwent in April 2014.
If Qinetiq had done so, they would have realised the pain Mr Holmes was experiencing was resolved and that he had recovered and was able to return to work and perform his role.
Although Mr Holmes received compensation, the tribunal held that an uplift should not be awarded on his payment on the basis that Qinetiq failed to follow the ACAS code for disciplinary and grievance procedures.
Mr Holmes appealed the tribunal decision and the EAT upheld it. The reason being was that there was no evidence which pointed to the fact that Mr Holmes was responsible for his conduct or performance, he was purely dismissed on grounds of ill health. The EAT refused to award an uplift on the grounds that the ACAS code was not relevant and did not apply.