SOSR and the ACAS Code

An Employment Tribunal has decided in the recent case of Cummings v Siemens Communications Limited ET/3500013/10 that employers should follow the ACAS Code: Disciplinary and Grievance Procedures (“ACAS Code”) when dismissing an employee for some other substantial reason (“SOSR”).

A dismissal for SOSR is one of a number of potentially fair reasons for which an employer can dismiss an employee and is often used in situations where employers wish to make reasonable and justified changes to an employee’s contract and the employee refuses to accept those changes. The employer will often dismiss the employee for SOSR and simultaneously offer terms of reengagement, incorporating the changes to the employee’s contract they whished to make.

Indeed, this was the situation in the Cummings v Siemens Communication Limited case where Siemens wanted to make a change to Mr Cummings employment contract and he refused to consent to the change. Siemens dismissed Mr Cummings and offered him terms of reengagement including the desired change. Mr Cummings refused the offer of reengagement and issued a claim alleging that he had been unfairly dismissed.

The Tribunal found that the wording of the ACAS Code suggested that it applied to dismissals which were for SOSR. This was because the ACAS Code expressly excludes its application to dismissals for redundancy and to situations in which fixed term contracts expire. It was therefore ruled that, as SOSR dismissals were not expressly excluded, the ACAS Code should apply.

Despite there being a procedural defect, on this basis in the case the tribunal found that Siemens had complied with the spirit of ACAS Code and therefore the procedural failure was not sufficient to render the dismissal unfair.

The decision of the tribunal is an interesting one, and is likely to cause concern amongst employers. It is questionable whether other Employment Tribunals will consider the ruling when dealing with cases which have similar facts. What the case does demonstrate, however, is the need for employers to always adopt a fair dismissal procedure and that when dismissing for SOSR, they should consider following the procedure set out in the ACAS Code.

For more employment law advice regarding dismissal procedures or to comment on this article please email Nick Benton, employment law specialist by clicking here.