Seemingly going under the radar so far, in Bethnal Green and Shoreditch Education Trust v Dippenaar  UKEAT 0064_15_2110 (21 October 2015) the Employment Appeal Tribunal has accepted that the ACAS Code of Practice on Disciplinary and Grievance Procedures applies not only to misconduct dismissals but is also relevant to capability dismissals. This is important because in many cases an award of compensation can be increased by up to 25% if there is a breach of the code, in particular an “unreasonable failure” to comply with a relevant code.
For example, we are involved in one case where the dismissal was unfair and discriminatory because of a flagrant and unreasonable decision not to obtain medical evidence to investigate the employee’s prospects of return to good health and to work. The Employment Tribunal in Cardiff, however, has refused any uplift to compensation on the basis that, for the Code to apply, the employer had to be dealing with an allegation of misconduct against the employee; the Code was not, it was said, relevant to capability dismissals. We have appealed that decision and are awaiting hearing. Meanwhile, purely on the basis that the potentially fair reason for dismissal of ‘capability’ in the Employment Rights Act 1996 s98 is not subdivided in into incapability by reason of inaptitude or incapability by reason ill-health but specifically embraces both – see ERA 1996 s98(3)(a), the above decision in Dippenaar is apparent authority for the view that the Code is indeed relevant to capability dismissals.