The claimant employee in this case was dismissed by the employer for a breakdown in the relationship following an unsuccessful grievance and a warning having been given to the claimant. The original tribunal found the dismissal procedurally unfair and also awarded an uplift of 25% for the employer's failure to follow the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures when dismissing the employee.

On appeal, the EAT has confirmed the unfairness of the dismissal but has ruled that the Acas Code does not apply to SOSR dismissals and, therefore, no uplift in award can be made:

"The Code does not in terms apply to dismissals for some other substantial reason.  Certain of its provisions, such as for example investigation, may not be of full effect in any event in such a dismissal.  What is required when a dismissal on that ground is in contemplation is that the employer should fairly consider whether or not the relationship has deteriorated to such an extent that the employee holding the position that she does cannot be reincorporated into the workforce without unacceptable disruption.  That is likely to involve, as here, a careful exploration by the decision maker, in this case Ms Zacharias, of the employee’s state of mind and future intentions judged against the background of what has happened.  Of course, it would be unfair, as it was found to be here to a marginal extent by the Tribunal, to take into account matters that were not fully vented between decision maker and employee at the time that the decision was to be made.  Ordinary commonsense fairness requires that.  Clearly, elements of the Code are capable of being, and should be, applied, for example giving the employee the opportunity to demonstrate that she can fit back into the workplace without undue disruption, but to go beyond that and impose a sanction because of a failure to comply with the letter of the ACAS Code, in my judgment, is not what Parliament had in mind when it enacted section 207A and when the Code was laid before it, as the 2009 and 2015 Codes both were."

NOTE: The Acas Code applies in GB only. The Labour relations Agency Code applies in Northern Ireland and does cover SOSR dismissals and tribunal may award up to 50% of an uplift to an award for failure to comply with the LRA Code in NI.

http://www.bailii.org/uk/cases/UKEAT/2016/0264_15_1705.html