The recent EAT case of Holmes v QinetiQ Limited has clarified the scope of the ACAS Code of Practice (“the Code”) on Disciplinary and Grievance Procedures and confirmed that it does not apply to ill health dismissals.

Mr Holmes, who is disabled, worked as a security guard from July 1996 until he was dismissed in April 2014 on grounds of ill health as his employer considered that he was no longer capable of performing his role. The dismissal was found to be substantively unfair as QinetiQ had failed to obtain an up to date Occupational Health report about Mr Holmes’ ability to achieve a reliable attendance record following an operation in April 2014 that largely resolved aspects of his ill-health.

A key issue on appeal was whether there should be any uplift on compensation (up to a maximum of 25% as permitted by the Code) for the employer’s failure to comply with the requirements of the Code.

The EAT concluded that the Code is intended to apply in any situation in which an employee faces a complaint or allegation that may lead to a disciplinary situation or to disciplinary action. Disciplinary action is or ought only to be invoked where there is some sort of culpable conduct alleged against an employee that requires correction or punishment.

Therefore, while misconduct obviously involves culpable conduct, in contrast performance issues may arise from situations involving culpable or non-culpable conduct. The EAT concluded that the Code does not apply to internal procedures operated by an employer concerning an employee’s alleged incapability to do the job arising from levels of genuine sickness absence as there was no personal culpability as such.

The EAT did, however, confirm that the position is different should there be a failure to comply with sickness absence procedures or an allegation that the ill health that is asserted to have caused the absence is not genuine. In those situations a disciplinary procedure would be intended to address the alleged culpable conduct on the employee’s part rather than any lack of capability arising from ill health.

Another recent EAT case, Phoenix House Ltd v Stockman and another, adopted similar reasoning and held that the Code also does not apply to ‘some other substantial reason’ (SOSR) dismissals.

An area where employers will need to tread carefully is in the management of suspected malingering, taking longer periods of time to return from sickness absence than may be reasonably necessary, and/or taking what may be viewed as questionable instances of short-term ill health absence which are self-certified and which build up over time.

If the focus is solely upon the impact of an employee’s multiple short-term absences on the business and colleagues then the reasoning in the QinetiQ decision would strongly suggest that the Code is not applicable.

Contrast that to a situation where possible concerns of unauthorised absence arise in the assessment process; in that scenario the Code would appear to be invoked. Therefore internal processes may need to be paused and adapted mid-way if personal culpability becomes a concern and a feature of any process/investigation. This is likely to require significant vigilance from HR when supporting such processes.

Extending self-certification?

The British Medical Association’s recent suggestion to extend the self-certification period from seven calendar days to 14 calendar days (before a doctor is required to issue a “fit note”) illustrates a potential source of concern for employers. The BMA has expressed concern that GPs are being required to spend disproportionate amounts of time engaged on matters not directly related to patient care and that reducing bureaucracy regarding fit notes would be one way to help free up time to focus on patient care. A Citizens Advice report from 2015 suggested that a fifth of GPs’ time is taken up with non-health issues, including the preparation of fit notes, and considering whether an employee is fit to work, and whether any adjustments may need to take place to accommodate this. However, some commentators have questioned whether a self-certification period of 14 days might become a “skiver’s charter” and encourage longer periods of absence.

The DWP has stated that there are no plans to change the existing self-certification policy, emphasising that the system was set up following a consultation. However if pressures grow on the NHS it is possible this would go back on the agenda.