ACAS - Do as I say, not as I do

ACAS has been found to have breached its own procedures. While Sue Grey has not been appointed to investigate, an Employment Tribunal judge has found that ACAS “failed unreasonable to comply with the relevant provisions of the ACAS code”.
Facts
Mr Woods, a senior employee, brought an Employment Tribunal claim against his employer, ACAS. Many are familiar with ACAS as an organisation which advises about workplace issues and produces guidance on best practice, as well the statutory ACAS Code of Practice on Disciplinary and Grievance Procedures.
Mr Woods faced allegations, including of sexual harassment at work. Internal investigation by ACAS found that Mr Woods had, amongst other things, sent inappropriate text messages to female colleagues.
Mr Woods was dismissed for gross misconduct. His appeal against his dismissal was unsuccessful and he brought a claim in the Tribunal for unfair dismissal.
The Employment Tribunal decision
The Tribunal held that Mr Woods had been unfairly dismissed by ACAS. The Judge commented on the unreasonable failure by ACAS to follow its own Code of Practice , including the failure to disclose witness statements to Mr Woods. It was not lost on the Judge in this case that the employer was responsible for the provision of codes of practice and guidance on workplace procedures.
The Tribunal did not, however, award any compensation to Mr Woods because it found that he would have been dismissed at the same time, even if ACAS had followed a fair process prior to his dismissal, and because of his own blameworthy conduct.
Tribunal decisions at this level are not binding on other Employment Tribunals, however the case highlights that sometimes an employee’s conduct can back-fire, even if the employer’s processes can be criticised, and it provides some comfort to employers that there are ways to limit the value of an employee’s claim.
Reducing an employee’s compensation in a successful unfair dismissal claim:
1. Failure to follow the ACAS Code of Practice
The ACAS Code of Practice applies to grievances, and to dismissals for poor performance and misconduct (although employers may choose to follow it in other circumstances as well).
An employee’s unreasonable failure to follow the ACAS Code of Practice, for example failure to raise a grievance prior to resigning and claiming constructive unfair dismissal, or failure to follow the employer’s internal appeal process after being dismissed, can lead to the Tribunal reducing the amount of compensation awarded to the employee by up to 25%.
Likewise, an employer’s unreasonable failure to follow the ACAS Code of Practice can lead to the Tribunal increasing the amount of the compensatory award payable to an employee by up to 25%. The Tribunal will, however, take into account the size of employer and its resources when considering whether any failure to comply with the ACAS Code is unreasonable.
Employers should make sure to act fairly and reasonably, and to follow the ACAS Code of Practice particularly in dismissal situations to which it applies.
In Mr Woods’ case, however, he was not awarded any compensation, so the uplift/reduction was not applied.
2. “Polkey” reductions
A reduction for ‘Polkey’ (named after the case of Polkey v AE Dayton Services Ltd), can be made to an employee’s compensatory award in a successful unfair dismissal claim against their employer. A reduction of up to 100% can be made, to take into account that the employee would have been dismissed anyway, and that procedural errors by the employer in the dismissal process made no difference to the outcome.
This line of argument is often used when an employer has multiple reasons to dismiss, for example, if an employee is dismissed for misconduct and there follows a redundancy situation. The redundancy will be used to argue a reduction in an award, while the misconduct used as the basis to defend the claim.
3. The employee’s own blameworthy conduct (contributory fault)
Compensation can also be reduced (again, by up to 100%) where the employee’s culpable or blameworthy conduct is found to have caused or contributed to their dismissal and the reduction is just and equitable.
The Judge in Mr Woods’ case concluded that Mr Woods would still have been dismissed for gross misconduct, even if a fair process had been conducted; the errors by his employer in their processes made no difference to the outcome.
Mr Woods’ own conduct was found to be entirely responsible for the dismissal. The Judge noted Mr Woods’ seniority and position of trust, and that he showed no insight or remorse. Mr Woods’ long service (39 years) did not mitigate his conduct in the circumstances.
4. Failure to mitigate
Finally, it is also worth noting that employees bringing claims for unfair dismissal and claiming for their future loss of earnings will be under an obligation to mitigate their losses, i.e. they are under an obligation to look for a new job or to apply for benefits where available. Failure to do so can also see a reduction or limit in compensation.
Conclusion
The ability for the Tribunal to reduce an employee’s compensation to zero in cases where their dismissal may have been procedurally unfair, but the employee’s own blameworthy conduct caused the dismissal provides some comfort to employers. However, employers still face the costs of going to Tribunal, and the potential associated reputational damage. It is therefore best to take advice as early as possible. If you would like any further information or want to discuss any of these issues then please contact the writer, Marianne Wright, via mw@kilgannonlaw.co.uk or on 0330 124 7811.
Kilgannon & Partners LLP is a specialist employment law firm where our experienced employment law partners offer practical, prompt and professional employment law and HR advice.
^9th February 2022. © Kilgannon & Partners LLP

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ACAS - Do as I say, not as I do