Search

How can we help?

Icon

ACAS Code does not apply to SOSR dismissals

The Employment Appeal Tribunal in Phoenix House Ltd v Stockman & Anor upheld a Tribunal’s decision that the dismissal of an employee on the basis of an irretrievable breakdown in the working relationship was unfair but disagreed that the ACAS Code of Practice on Disciplinary and Grievance Procedures applied to such a situation. 

In this case, there was a dispute between the Claimant and her colleagues which resulted in the Claimant being dismissed based on an irretrievable breakdown in the working relationship with the Company.  The Tribunal cited four reasons for its conclusion that the dismissal was unfair, namely that the ACAS Code was not followed, that the disciplining officer had started from the position that the relationship had broken down and put the burden on the Claimant to prove otherwise, that matters of which the Claimant was unaware were taken into consideration (and thus she was not given adequate opportunity to challenge assertions made about her) and that the decision was outside the range of reasonable responses an employer would make.

The decision was upheld on appeal but the EAT disagreed that the ACAS code applied to the dismissal.  It cited recent cases which had discussed the potential for the Code to apply to SOSR dismissals (such as Hussain v Jurys Inns Group and Lund v St Edmond’s School – see our previous blog here).  However, the EAT said that in its judgment the Code did not apply to SOSR dismissals and that clear wording would be required to give effect to such an outcome.  It recognised that elements of the Code are capable of being, and should be, applied (for example, in this case, giving the employee the opportunity to demonstrate that she could fit back into the workplace without undue disruption) but said that to go beyond that and impose a sanction because of a failure to comply with the letter of the ACAS Code was not what Parliament had in mind.  

Chambers and Partners

The Clarkslegal team are commercial and good to work with. They get what our business needs and tell me what I need to hear.

This literal approach provides some clarity for employers on SOSR dismissals, however, the case itself is also a warning of the difficulty in dismissing fairly for a breakdown in the working relationship, in particular. Whilst this type of dismissal can amount to an SOSR (and thus is potentially a fair reason to dismiss), employers should be cautious about finding an irretrievable breakdown too readily. It is also clear from the judgment that  employers will be expected to follow a fair process for SOSR dismissals  which may well include taking some of the steps set out in the Code.

Employmentbuddy.com 

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

Author profile

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

About this article

Read, listen and watch our latest insights

art
  • 29 October 2026
  • Immigration

UK Immigration shake-up: More flexibility for skilled workers, but at what cost?

The UK Government has outlined further changes to its immigration system, with new measures affecting international graduates, sponsored workers, and businesses employing overseas talent.

art
  • 28 October 2026
  • Privacy and Data Protection

Remote working: 5 key data protection risks for employers

Remote working has become more prominent in modern business. While flexible working arrangements can improve productivity and employee wellbeing, they also create new data protection risks. Regardless of the physical location in which work is done, compliance with UK GDPR does not change.

art
  • 27 October 2026
  • Employment

Fire and Rehire update: Key changes delayed

The Government has published two documents giving key updates to the anticipated changes around ‘fire and rehire’ and restricted contractual variations, coming about as a result of the Employment Rights Act 2025 (“ERA 2025”). We now understand that these changes will now be delayed to March, rather than January 2027.

art
  • 26 October 2026
  • Corporate and M&A

Shareholders’ Agreements for Founders and Investors – SHA Series Part 3 of 5

A shareholders’ agreement is arguably one of the most valuable corporate governance agreements (along with articles of association) in any private UK company with more than one shareholder.

art
  • 23 October 2026
  • Litigation and dispute resolution

Section 172 Companies Act 2006: Key lessons from Saxon Woods v Costa

The Supreme Court’s decision in Saxon Woods v Costa UKSC 21 clarifies directors’ duties under Section 172 Companies Act 2006, confirming that good faith requires both honest belief and appropriate conduct.

art
  • 19 October 2026
  • Immigration

Right to Work Checks: Are UK businesses becoming immigration enforcement officers?

The UK’s Right to Work regime has undergone a significant expansion, with changes taking effect from 1 October 2026.