Jefferson (Commercial) LLP v Westgate
Mr Westgate was employed by Jefferson (Commercial) LLP from 2002. By September 2010, the employer had reason to speak to Mr Westgate about performance issues; he subsequently went off sick and issued a grievance.
The employer was unable to obtain medical information about Mr Westgate’s state of health and restricted the level of discretionary sick pay that it paid to him.
There was a meeting on 12 January 2011 to discuss the grievance, Mr Westgate’s ill health and the outstanding performance issues. At the meeting, Mr Westgate indicated that he was not prepared to return to work.
Following the meeting, the employer wrote to Mr Westgate indicating that there had been a mutual breakdown in trust and confidence.
Mr Westgate’s employment terminated on 31 January 2011 and he brought an unfair dismissal claim.
The employment tribunal held that dismissal was on the ground of some other substantial reason. However, the employer did not act reasonably in treating that reason as a reason to dismiss because of its failure to have any further discussions with Mr Westgate following the 12 January meeting.
The employer appealed to the Employment Appeal Tribunal (EAT).
The EAT upheld the appeal. The tribunal was wrong to hold that dismissal without a further meeting or further discussion was necessarily unfair without considering what purpose such further discussion would have had. In the circumstances, the loss of confidence was irretrievable. To have a further meeting to restate the position would be a meaningless charade. The dismissal was fair in the circumstances.
The EAT considered whether or not the use of the word “include” in the introduction to the Acas code of practice on disciplinary and grievance procedures (on the Acas website), which states “disciplinary situations include misconduct and/or poor performance”, suggests that “misconduct and poor performance is not a conclusive list”.
However, the EAT concluded that, in this particular case, where the relationship between the parties had irretrievably broken down: “There is nothing in our view to suggest that the code of practice had anything in particular to say in respect of the situation which the tribunal identified here”.
Whether a dismissal is fair or unfair depends on the particular circumstances of the case. However, cases where there has been a recognised complete breakdown in trust and confidence between the parties will be few and far between.
It is a shame that the EAT in this case did not consider further the issue of whether or not the Acas code applies to some other substantial reason (SOSR) dismissals.
In 2010, in a surprising decision, the employment tribunal in Cummings v Siemens Communications Ltd found that SOSR dismissals are covered by the Acas code because they are not expressly excluded.
The EAT in this case found that the Acas code was not applicable on the particular facts, but did not express an opinion on whether or not the Acas code applies to SOSR dismissals more generally.
Although SOSR dismissals are not expressly covered by the Acas code, the circumstances that give rise to a dismissal for SOSR will often involve discipline or performance issues. In these circumstances, it is advisable for employers to follow the provisions of the code.
Gurpreet Duhra, partner, DLA Piper
Case reports from XpertHR on the application of the Acas code to SOSR dismissals