Lund v St Edmund’s School, Canterbury

The ACAS Code of Practice on Disciplinary and Grievance Procedures applies according to the process initiated, or which ought to have been initiated, rather than the employer’s ultimate label for the dismissal. It may therefore apply where dismissal is ultimately described as being for some other substantial reason, if the employee’s conduct was investigated and could have led to dismissal.

An employee’s contribution to the dismissal cannot, without more, justify refusing a statutory uplift for the employer’s non-compliance with the Code. That would risk double accounting where the employee’s conduct has already reduced compensation. Pension loss must be assessed after determining the likelihood that alternative employment would be pensionable and whether a simplified or substantial-loss methodology is appropriate.

The claimant, a teacher, was found by an employment tribunal to have been unfairly dismissed. The tribunal described the reason as some other substantial reason, arising from loss of confidence and the effect of the claimant’s conduct on workplace relationships. It reduced the compensation by 65 per cent for his contribution to the dismissal and refused an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.

The tribunal also calculated pension loss by reference to employer contributions for one year. The claimant appealed against both aspects of the compensation assessment. The central issues were whether the claim concerned a matter to which the ACAS Code related, and whether the tribunal had adopted a legally sufficient approach to pension loss.

1. Appeal allowed. The tribunal’s decision that an uplift under section 207A was inappropriate was set aside, and the issue was remitted.
2. The relevant question was whether disciplinary proceedings had been, or ought to have been, invoked. The Code applies to the disciplinary process where an employee faces a complaint which may lead to disciplinary action. The ultimate outcome does not determine whether the Code applied. The claimant’s conduct had been called into question and was thought capable of leading to dismissal. The claim therefore concerned a matter to which the Code related, even though the dismissal was ultimately characterised as being for some other substantial reason.
3. The tribunal could not refuse an uplift because the claimant had contributed substantially to his dismissal. His contribution had already reduced the basic and compensatory awards by 65 per cent. Taking it into account again when deciding whether an uplift was just and equitable would amount to impermissible double accounting. The tribunal was directed to consider whether the employer’s failure was unreasonable, whether an uplift was just and equitable, and the appropriate percentage, with the degree of non-compliance being the primary consideration.
4. The pension-loss assessment was also set aside. The tribunal had to determine whether alternative employment was likely to be pensionable, consider whether a methodology other than employer contributions was appropriate, and explain any limitation of loss to one year. The matter was remitted for reconsideration, including the possible use of the simplified or substantial-loss approach.

• Employment Appeal Tribunal: allowed the appeal, set aside the findings on the section 207A uplift and pension loss, and remitted those issues to the same employment tribunal.
• Employment Tribunal: found the dismissal unfair and awarded compensation, reduced by 65 per cent for the claimant’s contribution to his dismissal.