How Appealing

The right of appeal is the final step in a fair disciplinary or capability procedure in accordance with the relevant Acas Code of Practice.  Wherever possible, an employer should arrange for the appeal to be dealt with by someone not previously involved in the matter.  Of course, that person must also have the authority to overturn to original decision, so it’s good practice not to involve the most senior staff in the earlier stages of a disciplinary or capability procedure.  An appeal also gives the employer the opportunity to remedy any previous procedural defects provided that it is sufficiently comprehensive, so an employer should always take this opportunity where it is available. 

An unreasonable failure to allow an employee to appeal against their dismissal for reasons of conduct or capability could mean that that dismissal is unfair and the employee is entitled to an uplift of 25% in compensation awarded. 

Whilst an employer has no obligation under the Acas Code to hold an appeal hearing in cases of redundancy or “some other substantial reason”, it is generally advisable to do so as a matter of good employment practice and to remedy any previous procedural defects.  That said, a failure to hold an appeal hearing is likely not to be unreasonable (for the purposes of the Code) or otherwise unfair in the very rare circumstances where such an appeal would have been futile.

In the recent case of Moore v Phoenix Product Development Ltd, Mr Moore (the former CEO who had remained employed and on the board of directors) was dismissed for “some other substantial reason”.  He had been responsible for an irreparable breakdown in the working relationship between himself and others in a small organisation where there was no higher level of management.  His confrontational conduct at the dismissal meeting indicated that his behaviour and attitude towards others were unlikely to change.  In these circumstances, the EAT agreed that an appeal would have been futile and a failure to offer an appeal did not make the dismissal unfair.

Previous case law in the case of redundancy had held that the absence of any appeal procedure “is just one of the many factors to be considered in determining fairness” in a redundancy dismissal.  This statement of law has been confirmed in the judgment last week of the Court of Appeal in Gwynedd County Council v Barratt and another.  In this case, the employment tribunal had upheld the unfair dismissal claims of two teachers on various substantive and procedural grounds and stated that there must be “truly exceptional circumstances” to deny a right of appeal to redundant employees. 

Both the EAT and Court of Appeal found that the tribunal’s judgment taken as a whole indicated that it had not applied a general rule that a redundancy dismissal would always be unfair where there was no right of appeal.  In the particular circumstances of the case, it was entitled to have found that the lack of an appeal meant that the teachers had no opportunity to challenge the redundancy procedure.  Therefore, if an employer follows a fair redundancy procedure, including fair selection and consultation, the absence of a right of appeal will not make the dismissal unfair for that reason alone.  That said, are you prepared to take that risk where a competent senior manager is available to hold an appeal hearing?

If you need guidance on issues relating to disciplinary, capability, redundancy or any other dismissal procedure, please contact the team at Synchrony Law for details of how we can help you.