Tribunals must heed ACAS code

Employment tribunals must take the ACAS code of practice on disciplinary procedures into account when considering claims of unfair dismissal. Failure to do so is an error of law, the Employment Appeal Tribunal (EAT) has held.

Mrs Spence was an employee of Manchester United for 10 years and had an unblemished disciplinary record. She was then summarily dismissed for making and receiving an excessive number of personal telephone calls.

There had been an investigation and a disciplinary hearing, but Spence had not received a formal warning about use of the telephone for personal calls.

It would be unusual, the EAT said, for a tribunal to find it fair to instantly dismiss a long-serving employee with no previous record of misconduct for this type of offence when the employer had not gone through a proper formal warning process.

The EAT also commented that employment tribunals often overlook the statutory requirement for them to have regard to the ACAS code of practice on disciplinary matters.

According to the EAT, if the tribunal had considered the code of practice in this case, it would have questioned whether the offence came into the category of gross misconduct, and whether Spence knew that it did and that it could result in instant dismissal.

The tribunal had made an error of law, so the EAT ruled that the case should be sent to a different tribunal to be re-heard.

Spence v Manchester United plc UKEAT/0285/04