In the recent case of Lund v St Edmund's School, Canterbury UKEAT/0514/12, a teacher appealed against the level of compensation awarded after he won his claims of wrongful and unfair dismissal. He argued that an uplift should have been applied for the respondent's failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Mr Lund was dismissed due to a breakdown in the employment relationship, which arose from his difficult and erratic behaviour. He was given no prior warning of the purpose of the meeting at which he was dismissed. The employment tribunal found that Mr Lund was dismissed for "some other substantial reason" of a kind such as to justify the dismissal of someone holding his position (SOSR), and that his dismissal was substantively and procedurally unfair. In assessing compensation, the employment tribunal found that Mr Lund had contributed to his dismissal and so reduced his compensation by 65%. The tribunal did not make any uplift for a failure to follow the Code. It noted that the Code was silent on its application to SOSR dismissals and said that the uplift did not apply because Mr Lund contributed to his own dismissal and because his dismissal was for SOSR.

The EAT allowed Mr Lund's appeal. The purpose of the uplift is penal. It was irrelevant that Mr Lund had contributed to his dismissal. He had not contributed to the respondent's failure to comply with the Code and thus should not be penalised again.

Moreover, the tribunal was wrong to find that the Code did not apply in this case. Although the dismissal had been for SOSR, the Code applies to "disciplinary situations". There had been significant conduct issues raised, which ultimately led to Mr Lund's dismissal and, once it was thought that his conduct might lead to his dismissal, the school's disciplinary procedure should have been invoked -even if he was ultimately dismissed for a non-disciplinary reason. On that basis, the Code should have been applied.

Impact for Employers

Where the Code applies, an unreasonable failure by an employer to comply can result in any award being increased by up to 25% (and an unreasonable failure by an employee to comply can result in any award being reduced by up to 25%).This case confirms that the Code applies to dismissals that are badged as SOSR, in circumstances where the employer's disciplinary procedures are, or ought to be, invoked. Although it is helpful to have EAT authority on this point, the EAT appears to draw a distinction between circumstances where the SOSR dismissal arises due to the employee's conduct (where the Code will apply) and other cases (where dismissal for conduct was not contemplated at the outset). However, there is a fine line between dismissal for conduct resulting in the breakdown in the relationship and dismissal for the breakdown itself. Where there is arguably an element of conduct or performance leading up to the SOSR dismissal, employers would be well advised to follow the Code.