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Issue 25 (August 1998)
Code breakers beware
Men benefit from women's equality
Rights for union members
Casual about employee status?
Payment in lieu of notice: debt under contract or damages for breach of contract?
Deduction of wages for those working on a commission basis
Fairness at Work White Paper: family friendly policies
Lock v Cardiff Railway Company Ltd
IRLR (1998) 358 EAT
Industrial Tribunals must take into account the ACAS Code of Practice on Disciplinary Practice and Procedures and a failure by employers to implement the Code will render any dismissal unfair say the Employment Appeal Tribunal.
Mr Lock, a train conductor, had a child removed from a train who did not have the ability to pay a £1.25 excess fare, leaving him alone at an unknown station to be collected by his parents resulting in him getting home three hours late. The employers dismissed him on the grounds that it was a failure to follow instructions on excess fares and a failure to follow the employer's policies on courtesy and safety. An industrial tribunal found this decision was in the range of reasonable responses of a reasonable employer and therefore fair.
The EAT overturned the decision of the tribunal, substituted a finding of unfair dismissal and remitted the case back to the tribunal to consider re-engagement. The EAT pointed out that the tribunal had made no explicit reference to the Code of Practice and pointed out that S.207 (2) of the Trade Union and Labour Relations (Consolidation) Act 1992 requires tribunals to take into account the provisions of the Code of Practice.
The EAT felt that there were at least two breaches of the Code, namely paragraph 8 which provides:
'employees should be made aware of the likely consequences of breaking rules and in particular they should be given a clear indication of the type of conduct which may warrant dismissal.'
and second, paragraph 10(b) which says:
'ensure that, except for gross misconduct, no employees are dismissed for a first breach of discipline.'
There were no findings by the tribunal that the conduct of Mr Lock amounted to gross misconduct or had been identified as gross misconduct by the employers. Accordingly the EAT held that no reasonable employer would have dismissed someone for a first offence of this kind.
In fact the employers in this case had a very detailed disciplinary Code of Practice which had been agreed with the relevant trade unions. The EAT held that the unions could not, by agreement, deprive Mr Lock of the benefit of good industrial relations practice. In other words agreed procedures must also ensure that they comply with the ACAS Code.
The employers argued that there should be a Polkey reduction because of Mr Lock's conduct. This was also rejected by the EAT as they found that no reasonable employer would have dismissed for a first offence without first having told the employee that this would happen. This was therefore not simply a procedural error but a substantively unfair dismissal