Acas Code of Practice

While capability is distinct from misconduct, issues surrounding sickness absence are often dealt with through disciplinary channels and union reps should try to be familiar with the Acas Code of Practice on disciplinary and grievance procedures (the “Acas Code”), with its accompanying Guidance. Both documents can be downloaded from the Acas website.

The Code does not apply to a capability dismissal for long-term sickness absence that concerns only the question of whether an employee is too sick or injured to do their job (Holmes v Qinetiq Limited [2016] UKEAT/0206/15/BA). Even so, the employer must follow a fair procedure. Where the employer has its own procedure, they must follow every step, or else any dismissal is likely to be unfair.

The Code does apply to any internal procedure that could lead to a disciplinary outcome. This includes “blameworthy” conduct relating to sickness absence and sick pay, such as breaches of attendance procedures (for example, lateness, unauthorised absence, or not meeting attendance targets); and breaches of sickness absence rules, for example, allegations that sickness was not genuine, that sick pay has been claimed dishonestly, or that rules on notifying sickness absence have been broken.