95% of employees agreed to a contractual change owing to the company’s financial situation. Mr Cummings did not and was dismissed for “some other substantial reason” (SOSR). A tribunal found the dismissal procedurally and substantively fair, albeit that the employer had not complied with the Acas Code on Disciplinary and Grievance Procedures. The ‘breach’ of the Code was that Siemans did not write a letter to Mr Cummings inviting him to the dismissal meeting. However, Siemans had complied with the spirit of the Code and had a sound business reason for the change.

The surprising aspect of the case was the tribunal’s finding that the Code applied to a SOSR dismissal. The Code states that “disciplinary situations include misconduct and/or poor performance”. According to the tribunal, the word ‘include’ means that its application is not necessarily limited to those issues.  But the Code is designed to “help employers deal with disciplinary and grievance situations in the workplace” and it is difficult to see how the events in this case could in any way be described as a “disciplinary situation”.

For the time being, while the legal debate ‘rages’ on, the case serves as a very useful reminder that the good practice set out in the Acas Code should be followed when any dismissal is contemplated, except of course, ‘retirement’ at or above the default retirement age (DFA), or under the DFA but which does not amount to unlawful age discrimination, and where in both cases a specific statutory procedure applies.