Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In the case of Holmes v Qinetiq Ltd UKEAT/0206/15/BA the Employment Appeal Tribunal (“EAT”) considered whether the ACAS Code of Practice applied to capacity (ill health) dismissals and, if so, whether the Claimant was able to claim an uplift to his compensation for a failure to comply with the ACAS Code of Practice.

The EAT held that the ACAS Code of Practice does not apply to ill health dismissals as the ACAS Code of Practice, properly construed, does not apply to an employer’s internal procedures concerning alleged incapability to undertake a role because of sickness absence; the EAT held that the ACAS Code of Practice only applies to procedures concerning allegations of misconduct and poor performance (rather than ill health).

The factual background of Holmes v Qinetiq Ltd

Mr Holmes was employed by Qinetiq Ltd (“Qinetiq”) as a security guard from 1 July 1996 until his dismissal on 17 April 2014. He was based at Aberporth, Wales.

During the period of his employment Mr Holmes had a number of long periods off work sick due to pain he experienced in his back, legs, and hips. He underwent surgery in April 2014 that effectively resolved the pain he had been experiencing prior to undergoing surgery but Qinetiq dismissed him in April 2014 on the grounds of his ill health without obtaining an up-to-date Occupational Health report on Mr Holmes’ ability to attend work in the future.

Mr Holmes issued claims for unfair dismissal and age discrimination.

The Employment Tribunal’s decision

During the Employment Tribunal proceedings Qinetiq conceded liability regarding the unfair dismissal and discrimination claims.

A remedies hearing was held to determine what compensation Mr Holmes should be awarded in his claims. Mr Holmes and an employee of Qinetiq, Morag Morrison, gave evidence at that hearing. As well as past and future loss of earnings (and injury to feelings), Mr Holmes claimed that he should be awarded an uplift to his compensatory award as, he alleged, the ACAS Code of Practice applied and Qinetiq had unreasonably failed to follow it.

The Employment Tribunal awarded Mr Holmes his past losses to the date of the Employment Tribunal (7 September 2015) and, further, his future losses from 7 September 2015 to 6 September 2018 (a period of 3 years). The Tribunal declined to award an ‘ACAS uplift’ for failure to follow the ACAS Code of Practice as it found that the Code of Practice did not apply to ill health dismissals for four reasons:

  1. The ACAS Code of Practice does not apply to internal procedures regarding ill health incapability, and is limited to internal procedures concerning misconduct or culpable poor performance
  2. Ill health dismissals are a result of medical incapability, not culpable poor performance
  3. There was precedent (Lund v St Edmunds School Canterbury) to show that the presence of culpability is central to any award of an ACAS uplift
  4. There was no suggestion that Mr Holmes was in any way culpable for what had happened

Mr Holmes appealed against the decision of the Employment Tribunal on 3 grounds:

  1. Whether the Tribunal was correct to refuse to award any uplift in compensation;
  2. Whether there was evidence to support the conclusion that suitable alternative employment would have been obtained by 6 September 2018 and so that full loss ceased as of that date;
  3. Whether travel costs could properly be ignored or not taken into account in determining pecuniary loss in the period from 7 September 2015 onwards

The decision of the Employment Appeal Tribunal

The Employment Appeal Tribunal rejected all 3 grounds of appeal, holding:

  1. That Mr Holmes’ internal capability procedure was not a “disciplinary situation” and an ACAS uplift could therefore not apply (as this was only intended to apply to internal poor performance or disciplinary proceedings)
  2. There was sufficient information available to the Tribunal to make the judgment that it did – assessing future loss is an imperfect, speculative exercise based on necessarily limited information
  3. No evidence of any travel expenses had been put to the Tribunal during the remedies hearing, and it was therefore entitled not to make an award in respect of such

Why is this case important?

This case is important as it sets a precedent that ill health dismissals do not invoke any ACAS uplift award (whether the dismissal is discriminatory or not). This is welcome news for employers, given that the law on this issue was previously uncertain.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.79 Average

    274 Reviews

    Mary B

    I was very happy with the work Chris did for me. I believe with his help I secured a more favourable outcome both financially and in terms of clauses contained in the legal agreement I ultimately signed. I had utmost trust and confidence in the advice Chris provided throughout. Chris kept me informed at every stage and I found him very efficient at bringing matters to a conclusion without unnecessary delay.

    Posted 1 day ago

    Mark M

    I found Redmans very easy to work with. Mel was very responsive, her advice led to an improved settlement. . Recommended.!

    Posted 3 days ago

    Anonymous

    Fantastic service. I would recommend Redmans to anyone who needed a Solicitor. The communication was second to none and consistent clear guidance was given.

    Posted 5 days ago

    Anonymous

    Everyone I dealt with at Redmans were professional, empathetic & always responded promptly and helped make the transition as smooth & efficient as possible for me. If you need legal advice, don’t hesitate & contact the team.

    Posted 1 week ago

    Anonymous

    Sacha was incredibly helpful and professional. Timely and accurate advice at a time I most needed it. I was extremely impressed and grateful.

    Posted 1 week ago

    Sue W

    The people at Redmans talk to you with respect and make you feel like they take your situation personal. They clearly care and are extremely professional. I have recommended Redmans to many people.

    Posted 3 weeks ago

    Anonymous

    Redmans Solicitors were consistently prompt, efficient and professional from the start of my reaching out to them for support in relation to contentious negotiations of an employment matter that continued for almost two months resulting in a positive settlement agreement. Chris Hadrill was diligent, thorough, empathetic and objective in his advice and guidance, showing deep and broad knowledge of the law and legal processes plus extensive practical experience in handling complex matters, resulting in clear and pragmatic advice in ambiguous circumstances that resulted in a very good outcome. I fully recommend Chris Hadrill and Redmans Solicitors! I have made this review anonymous purely because of the confidentiality obligations in the settlement agreement concluded.

    Posted 1 month ago

    Michelle W

    Redmans solicitors provided legal support and advice for a settlement agreement. Excellent customer service, very professional. The senior associate solicitor kept me updated throughout the process, showed empathy and the agreement was signed-off / completed within the agreed timeline.

    Posted 1 month ago

    Mark W

    Redmans Solicitors were extremely professional and helpful! Chris Hadrill handled my case and was an amazing help! His guidance, advice and understanding to my redundancy settlement were always clear, concise and very helpful and I am very grateful to him, and glad I found Redmans to help with my settlement. I highly recommend them!

    Posted 1 month ago

    Alison M

    Very happy with the advice I received

    Posted 2 months ago

    Margaret A

    I found everything about the company to be extremely professional and efficient. During my initial contact with Chris, he listened well and was reassuring, so I felt confident that my case would be well handled. Caroline was excellent at explaining all the legal points and answering my questions, as well as being very supportive and understanding throughout the process. I would definitely recommend this company.

    Posted 2 months ago

    Sanja K

    Very efficient and professional service.

    Posted 2 months ago

    Anonymous

    I found the advice I was given by Redmans Solicitors to be clear and useful and found the solicitor on my case to be both knowledgeable and approachable.

    Posted 2 months ago

    Karen T

    Great service. Thank you.

    Posted 2 months ago

    Anonymous

    Excellent service from Chris & Mel Chin. The best outcome was achieved from the redundancy process. They were extremely thorough, listened carefully and acted swiftly on my behalf. I highly recommend Redmans Solicitors

    Posted 2 months ago

    Shanine M

    Excellent service, thank you so much!

    Posted 2 months ago

    Anonymous

    I found Caroline and Chris very Helpful and provided excellent service. Caroline especially provided great legal advice and made me feel at ease with the whole process. I would highly recommend them. Thank you!

    Posted 2 months ago

    Gayle B

    Excellent company very professional would definitely recommend

    Posted 2 months ago

    Alex K

    Redmans provided an excellent service, timely and effective. Will definitely recommend.

    Posted 2 months ago

    Anonymous

    Great job done on my employment law

    Posted 2 months ago

    Dominica S

    Caroline & Chris were very prompt and efficient.Very happy with the service and will definitely recommend Redmans Solicitor to everyone !

    Posted 2 months ago