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does the ACAS code apply to SOSR dismissals?

13 May 2013

The ACAS disciplinary code does not apply to non – disciplinary dismissals. This includes misconduct and performance but not usually dismissals for Some Other Substantial Reason (SOSR).

In Lund v St Edmunds School the claimant was dismissed for alienating his colleagues and affecting morale. The potentially fair reason was SOSR, which the tribunal found procedurally unfair. Mr Lund was not warned of the dismissal meeting or the opportunity to appeal. No uplift was made for the breach of the ACAS code.

The EAT disagreed. Whilst he was not dismissed for conduct reasons, it said the ACAS code did still apply. His claim concerned his conduct which led his employers to consider whether he should be dismissed.

Employers should therefore think before assuming the code does not apply. However, they should also remember even where it does not apply, a failure to follow it is likely to mean that general principles of fairness have not been achieved; going to the reasonableness of the decision to dismiss.

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