Does the Acas Code of Practice on Disciplinary and Grievance Procedures apply where an employee has blown the whistle?

EAT confirms the Acas Code of Practice applied where a protected disclosure led to dismissal.

The Acas Code of Practice on Disciplinary and Grievance Procedures (the Code) is statutory guidance which employers should take into account. Although there is no legal requirement to follow the Code in every detail, tribunals will take the Code into account when deciding whether an employer has acted reasonably in its handling of any disciplinary or grievance issue. If an employer decides to depart from the Code, it should have very good reason for doing so, for example because of the particular circumstances of the employee or organisation in question. 

Tribunals can adjust any award made to an employee by up to 25% for unreasonable failure to comply with the Code. This adjustment can lead to a reduction in the award if the employee has failed to comply, or an increase in the award if the employer has failed to comply.

When does the Code apply?

The Code applies to disciplinary and grievance processes. It does not apply to redundancy dismissals or to dismissals on the non-renewal of a fixed term contract.

Furthermore, case law suggests that the Code will only apply to dismissal processes where there are allegations of 'culpable conduct' such as misconduct or poor performance, requiring correction or punishment. This suggests that the Code would not apply to a capability dismissal process where an employee has a health condition which means they are not capable of performing the role, and there is no suggestion that poor performance is a matter of culpability or blame. There may, however, be difficult cases where there is a crossover between conduct and capability concerns where it would be safer to ensure compliance with the Code.

Where an employee is dismissed or subject to detriments following whistleblowing, the application of the Code will depend on the particular circumstances of the case. It will apply where the employer alleges culpable conduct and a disciplinary process ensues. It will also apply where the employee’s whistleblowing comes under the definition of grievances: “concerns, problems or complaints that employees raise with their employers”. In most cases, this would cover any whistle-blowing complaint raised directly with the employer.

The Employment Appeal Tribunal has recently considered whether the Code applied to the dismissal of an employee which was found to be because of whistleblowing.

Case details: Ikejiaku v British Institute of Technology Ltd

The claimant had been employed by British Institute of Technology (BIT) since 2013. It came to light that BIT had failed to deduct tax and National Insurance Contributions (NICs) from the claimant’s pay. In October 2015, the claimant disclosed to the Principal Director of BIT that he had contacted HMRC, that HMRC had confirmed that BIT was not deducting income tax and NICs in relation to his pay, and that it should have been doing so (the 2015 disclosure). In 2016, the claimant was asked by BIT to sign a contract as an “self-employed contractor”. BIT argued that this was in order to clarify the terms on which the claimant was engaged. 

In 2017, the claimant disclosed to the Principal Director that the Associate Dean had asked him to give a pass mark to students whom the claimant had found to have copied from each other (the 2017 disclosure). The following day, the claimant was dismissed. BIT stated that the reason for the dismissal was a reduced requirement for lecturers.

The claimant brought claims for automatic unfair dismissal and detriments on the ground of protected disclosures (whistleblowing).

The tribunal found that the 2015 and 2017 disclosures were protected disclosures. It found that the claimant had been automatically unfairly dismissed because of the 2017 disclosure.

The tribunal also found that the claimant had been subject to a detriment when the self-employed consultant contract was imposed on him in 2016, and that this detriment was on the ground of the 2015 disclosure. However, the tribunal determined that the claimant’s detriment claim was out of time. This was because the imposition of the consultant contract was a one-off act and the claimant had brought his claim more than three months after this act had taken place.

The tribunal determined that the Code did not apply to dismissals because of protected disclosures and so did not award the claimant an uplift on his unfair dismissal award.

On appeal the EAT agreed with the tribunal that the imposition of the consultant contract was a one-off act with continuing consequences rather than a continuing act. In making this decision, the EAT noted that the tribunal had found that the only detriment caused by the 2015 disclosure was the imposition of the consultant contract, and that a number of detriments relating to the consultant contract (such as non-payment of tax and NICs by BIT) were not causally linked to the protected disclosure. In fact they had also occurred before the 2015 disclosure took place.  The EAT noted that in some cases, “continuing act” detriments can occur, for example where an employer puts in place a policy or rule because of a protected disclosure and the implementation of this policy from time to time has a detrimental impact on the employee.

The EAT did not however agree with the tribunal that the Code did not apply to the dismissal. It held that the claimant’s protected disclosure on the day before his dismissal was a grievance, as it fell within the Acas definition of grievances as “concerns, problems or complaints that employees raise with their employers”. The employer should therefore have taken the Code into account. The EAT remitted this point back to the tribunal to reconsider the question of the uplift to be applied to the award.  

Should employers deal with grievances which are raised just before or after termination of employment?

Employers would be well advised to deal with grievances raised by employees even if they are raised shortly before or after termination. It is possible that dealing with grievances will help to avoid an employment tribunal claim being brought. If a claim is brought, it will protect the employer from the risk of any tribunal award being increased on the basis that it unreasonably failed to follow the Code.  

If the grievance overlaps significantly with a dismissal or other appeal process, it may be reasonable to deal with the concerns raised as part of that appeal. However ignoring concerns raised at a late stage in a process or after termination is not best practice and will increase the risks of claims.

Employers should also follow their own relevant disciplinary, grievance and whistleblowing policies, bearing in mind their overall duty to act reasonably and fairly in the circumstances. They should also make reasonable adjustments to procedures for disabled employees.

Please see our previous article, Serious one-off incident of discrimination was correctly placed in the middle vento band on a case in which an employment tribunal awarded a 25% uplift to an employee who had raised a grievance following termination of their employment.