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Disciplinary appeals – is there a risk in changing the sanction?

16524281_sSUMMARY:  In a recent case, the Employment Appeal Tribunal (EAT) (overturning an Employment Tribunal decision) held that a decision on an internal appeal to overturn a decision to dismiss and instead demote the employee still amounted to dismissal.

Facts:

Mr P was employed as lead chaplain on pay band 7.  Following an incident he was dismissed for gross misconduct.  Mr P appealed against this decision and attended an appeal hearing.

The outcome of the appeal hearing was a decision by his employer to substitute for the sanction of dismissal a formal written warning, a downgrading from pay band 7 to pay band 6 and a transfer from the employee’s previous base to another location.

Decision:

The Employment Tribunal held that Mr P had not been dismissed.  Mr P appealed and the EAT held that he had been dismissed for the reasons explained below.

The EAT noted that in Mr P’s contractual disciplinary policy, it stated that the employee had to agree to a sanction short of dismissal such as demotion without pay protection and a disciplinary transfer to another post within the organisation.  Mr P did not consent to his downgrading in pay band or the transfer.  This meant that the only alternative for Mr P following the appeal hearing was dismissal.  He was therefore dismissed.

What does this mean for employers?

Usually employers have the right to substitute a different disciplinary sanction when hearing an appeal and if they do this (for example by way of a final written warning), he employee’s pay is reinstated from the date of the original dismissal.  The employee then returns to their original position and is generally unable to argue that they have been unfairly dismissed.

Employers should carefully check disciplinary procedures when making appeal decisions.  They should also check whether these procedures are contractual, which we do not generally advise as it restricts employers’ flexibility when following or amending disciplinary procedures.

If the decision of an appeal officer is to demote, rather than dismiss, an employee, the employer should (depending on the contractual terms) usually seek the employee’s express written consent to this demotion.  If the decision is to demote the employee, this is normally an alternative to dismissal and this means that the employer should still be able to justify the decision to dismiss; the employer should consider if the sanction is reasonable in all the circumstances.

Finally, it is often sensible to include within the employment contract the right for the employer to demote an employee (or impose other sanctions short of dismissal) rather than dismiss them.

Hazel Robbins, Solicitor.

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Updated: by FG Solicitors
Call us on:  0808 172 93 22

DISCIPLINARY APPEALS € IS THERE A RISK IN CHANGING THE SANCTION?

16524281_sSUMMARY:  In a recent case, the Employment Appeal Tribunal (EAT) (overturning an Employment Tribunal decision) held that a decision on an internal appeal to overturn a decision to dismiss and instead demote the employee still amounted to dismissal.

Facts:

Mr P was employed as lead chaplain on pay band 7.  Following an incident he was dismissed for gross misconduct.  Mr P appealed against this decision and attended an appeal hearing.

The outcome of the appeal hearing was a decision by his employer to substitute for the sanction of dismissal a formal written warning, a downgrading from pay band 7 to pay band 6 and a transfer from the employee’s previous base to another location.

Decision:

The Employment Tribunal held that Mr P had not been dismissed.  Mr P appealed and the EAT held that he had been dismissed for the reasons explained below.

The EAT noted that in Mr P’s contractual disciplinary policy, it stated that the employee had to agree to a sanction short of dismissal such as demotion without pay protection and a disciplinary transfer to another post within the organisation.  Mr P did not consent to his downgrading in pay band or the transfer.  This meant that the only alternative for Mr P following the appeal hearing was dismissal.  He was therefore dismissed.

What does this mean for employers?

Usually employers have the right to substitute a different disciplinary sanction when hearing an appeal and if they do this (for example by way of a final written warning), he employee’s pay is reinstated from the date of the original dismissal.  The employee then returns to their original position and is generally unable to argue that they have been unfairly dismissed.

Employers should carefully check disciplinary procedures when making appeal decisions.  They should also check whether these procedures are contractual, which we do not generally advise as it restricts employers’ flexibility when following or amending disciplinary procedures.

If the decision of an appeal officer is to demote, rather than dismiss, an employee, the employer should (depending on the contractual terms) usually seek the employee’s express written consent to this demotion.  If the decision is to demote the employee, this is normally an alternative to dismissal and this means that the employer should still be able to justify the decision to dismiss; the employer should consider if the sanction is reasonable in all the circumstances.

Finally, it is often sensible to include within the employment contract the right for the employer to demote an employee (or impose other sanctions short of dismissal) rather than dismiss them.

Hazel Robbins, Solicitor.

Contact Information

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.