Disciplinary Appeals – Important Points

The ACAS Code of Practice on disciplinary and grievance procedures states:  “Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision.”   However, the appeal process is not always straight-forward, as evidenced by the three cases below.

1. Duty to make adjustments continues to apply during the appeal process

In a claim involving a midwife at Chelsea and Westminster Hospital who suffered with stress, anxiety and reactive depression, it was concluded that the duty to make reasonable adjustments is engaged all the way through the dismissal process, up to and including any appeal.

It was determined that declining to extend the 10 working days’ time limit for appealing against the Claimant’s dismissal on health grounds amounted to a failure to make reasonable adjustments under the Equality Act.

Although in these particular circumstances, this breach of the Equality Act was not enough to make the whole process unfair (the employers had made a number of other adjustments throughout the capability process and it was found that an appeal against the decision to dismiss was very unlikely to succeed) it is a reminder that the duty to make reasonable adjustments can extend beyond termination.

2. Successful appeal will normally result in automatic reinstatement

Both employers and employees need to be aware that most appeal procedures are set up so that a successful appeal against dismissal results in automatic reinstatement. The latest ruling from the Employment Appeal Tribunal (“EAT”) on this point involved a worker at Iceland Foods who did not want to return to work.

This can present difficulties for the employee if the individual is unaware of this rule, and has appealed to clear their name rather than genuinely wanting their job back. If an employee appeals a dismissal and as a result of such appeal, is offered their job back which they decline, this could undermine any subsequent claim for unfair dismissal that they later seek to bring.

3. Appeals will be assessed in context of overall fairness of process

In a claim against British Airways (“BA”) last year involving a member of cabin crew on long term sickness absence, rather than holding a series of review meetings before deciding to dismiss, BA set a provisional dismissal date, which it repeatedly postponed. Under the relevant procedure, employees had a right of appeal against a decision to dismiss.

In this case the claimant appealed against the setting of one of the provisional dismissal dates, but was not offered a further appeal against his actual dismissal, which happened several months later. The EAT endorsed the employment tribunal’s decision that the absence of a final appeal did not make the whole process unfair. There was nothing that could usefully have been added in a further appeal – all the relevant issues had been thoroughly explored in the first appeal.

Although in most cases offering an opportunity to appeal against any final decision to dismiss is fundamental to a fair process, there will sometimes be exceptions, as this case illustrates.

Providing an appeal against a decision to dismiss has been regarded as an essential requirement of a fair procedure for many years. But as three relatively recent Employment Appeal Tribunal decisions remind us, there is always something new to learn about the place of appeals in the overall process.

The Employment Team can provide advice and assistance in relation to any internal procedure including disciplinary, capability (related to performance or ill health) and grievance. Please get in touch if you require any such assistance.