The case of Cummings v Siemens Communications Limited has decided that the ACAS Code of Practice on Disciplinary and Grievance Procedures applies to dismissals by reason of some other substantial reason. The Code itself expressly states that it applies to dismissals relating to misconduct and/or poor performance. It also states that it does not apply to redundancy dismissals or the expiry or non-renewal of fixed term contracts.
The Tribunal accepted in this case that if it had been intended that SOSR dismissals were to be excluded from the application of the ACAS Code, it would have been expressly stated as was the case for redundancy dismissals. The employer in this case, should therefore have followed the ACAS Code. The employer had failed to write to the employee inviting him to the dismissal meeting and had therefore not complied with the letter of the Code.
This is a slightly odd decision. Having decided that the ACAS Code applied to SOSR dismissals, it would follow that the dismissal would be deemed to be procedurally unfair as the Code had not been followed. The Tribunal then made a U-turn and accepted that even though the Code was not followed, the procedure was not unfair.
This decision could perhaps give heart to employers who follow the idea of the ACAS Code but miss one procedural step. However, due to the nature of the case and the limitation of the facts applying to SOSR dismissals, it should not be relied upon as a way of avoiding the need to follow the ACAS Code.
It should always be borne in mind that regardless of whether the ACAS Code applies, employers should always follow a fair procedure. In reality, this may mean following the ACAS Code in all situations, including termination of fixed term contracts, to ensure that a Tribunal accepts the procedure is fair.