Under the Employment Rights Act, employment tribunals must have regard to the Acas Code on Disciplinary and Grievance Procedures (the Acas Code) when considering the fairness of a dismissal. In Buzoli v Food Partners, the claimant was dismissed for a second act of misconduct, having already received a final written warning for an earlier one. The employer had followed its own disciplinary policy and procedure (the DPP) but had not followed the Acas Code in three particular respects:
- the final written warning did not contain a statement that further misconduct within the next year might lead to dismissal;
- that warning was not referred to in the letter inviting him to the later disciplinary hearing, nor in his dismissal letter; and
- the employer only referred to the warning at the claimant’s internal (and unsuccessful) appeal against his dismissal.
The Employment Appeal Tribunal (EAT) considered that the employment tribunal had been well aware of these procedural flaws when it came to its decision that the dismissal was procedurally fair. Failure to follow the Acas Code to the letter did not mean that the dismissal was automatically unfair.
Points to note:
- Tribunals have the power to increase or reduce awards by up to 25% if they think either party has failed to follow the Acas Code.
- This case shows, and tribunals have been expressly told, that they should not be too ‘pernickety’.
- In this case, it was in the employer’s favour that it had its own DPP which it followed to the letter. The tribunal noted that the claimant had been told that the earlier written warning was a ‘stage 3 warning’ under the DPP and he would have been aware of the implications.
- The EAT also reminded tribunals that they can, as in this case, take account of what happened at the internal appeal stage when determining the fairness or otherwise of a decision to dismiss. This gives the employer the opportunity to correct any procedural defect at that stage.
Whilst the employer succeeded on appeal, its case would have been much stronger (and may even have been avoided) had it followed the Acas Code and specifically mentioned the previous warning and that the further offence may lead to dismissal.