SUMMARY: Whilst many employers’ primary aim is to get the investigation and disciplinary hearing out of the way, the importance of the appeal stage should not be underestimated.
Why offer a right of appeal?
The right of appeal is a fundamental step in any disciplinary process. Not only is this right a matter of good HR practice, the ACAS Code of Practice on Disciplinary and Grievance Procedures confirms that an employee should be allowed to appeal any formal decision (ranging from a warning to a dismissal) where they consider it is wrong or unjust.
Whilst not common, employees may have a contractual right to an appeal and, if so, the contract of employment will dictate the process that must be followed. Employers are therefore advised to check the contractual status of the process before deciding how to proceed. If in doubt, it may be preferable to obtain legal advice before starting the process to limit any argument by a disgruntled employee that there has been a breach of contract.
The consequences of not offering a right of appeal
A failure to offer a right of appeal may provide an employee with the basis for a claim. For example:
- an employee who has been issued with a warning could resign and claim constructive unfair dismissal on the basis there has been a breach of trust and confidence; or
- any dismissal in the absence of a right of appeal could be an unfair dismissal.
Although there is no statutory obligation to follow the ACAS Code, breaches of the Code can result in an uplift of up to 25% of any compensatory award made by a tribunal.
It is therefore advisable that any disciplinary procedure should include an appeal stage.
A fair appeal process
In order to avoid the mischief that can follow where the right of appeal has not been properly adhered to, employers should bear in mind the following top tips for ensuring a fair appeal process.
1. Arrangements for the appeal
Employers need to provide the employee with the opportunity to appeal and have that appeal heard at a hearing. In this regard, the following arrangements should be put in place:
- Check if there are any contractual appeal requirements that will need to be followed.
- The employee should be advised in writing at the end of any disciplinary process that should they want to appeal, they should set the grounds of appeal out in writing. A general rule of thumb is to allow the employee at least 5 working days to submit their appeal as recommended by the non-statutory ACAS guide.
- If an appeal is received it should be heard without unreasonable delay.
- The appeal should be dealt with impartially – see below.
- Employees must be given the right to be accompanied at appeal hearings by a work colleague or a trade union representative.
- The manager conducting the appeal should be provided with all the evidence obtained during the investigation as well as the notes from the disciplinary meeting.
- The appeal outcome should be confirmed in writing as soon as possible after the appeal.
Whilst the process appears to be relatively straightforward, there are some additional matters that an employer may need to consider, which are dealt with below.
2. Reviews Vs Re-Hearings
Employees should be asked to state their full grounds for appealing so that a decision can be taken as to whether the appeal will be either:
- a review of the original decision; or
- a full re-hearing of the case.
The grounds of appeal will dictate the format of the appeal and the employee should be advised of this in advance of the hearing. In situations where the earlier stages of the disciplinary procedure were flawed or the employee’s ability to continue in their chosen profession is at risk, a re-hearing is likely to be appropriate.
3. The need for impartiality
Wherever possible, it is advisable for the person chairing the appeal hearing to have had no prior involvement with any stage of the procedure leading up to the appeal stage. Ideally, this person should be someone more senior than the person responsible for making the decision to dismiss or imposing the disciplinary penalty. This will avoid allegations that the person responsible for the appeal was biased or was simply supporting their manager’s decision, instead of properly considering the decision.
It is also important that the appeal chair does not confer with the initial decision maker prior to the appeal hearing as this could lead to a biased view, even before they have met with the employee.
Where there has been a failure to provide an impartial appeals process, a dismissal which is upheld could be found to be unfair. Likewise, where the employee remains in employment there may be a breach of the implied terms of trust and confidence which may form the basis of a constructive dismissal claim.
Employers when planning any disciplinary process should be mindful of the appeal stage and give consideration as to who would be available to chair an appeal hearing, ensuring that whomever they choose is going to be sufficiently impartial to deflect any argument of bias. In some instances, this may mean bringing in an independent chair from outside the organisation. Ultimately, the identity of the chair should depend upon the nature of the complaint and the size of the administrative resources of the organisation.
4. What to do if new evidence is submitted
Irrespective of whether the hearing is taking the form of a review or a re-hearing, when new evidence comes to light, the employee must be given an opportunity to comment on it. In certain circumstances new evidence may also be used to justify the upholding of a dismissal on appeal even if the chair is of the view that the evidence relied on at the original dismissal hearing was not sufficient to justify dismissal at that earlier stage – this is provided that the evidence relates to the original reason for dismissal and not a different reason.
Equally, employees should be given adequate opportunity to present their case at the appeal stage. Any new information submitted by the employee at the appeal should therefore be considered by the chair.
5. Varying sanctions on appeal
There are a variety of sanctions available to an employer. For example:
- Dismiss the appeal and uphold the original sanction.
- Overturn the original sanction.
- Substitute a different sanction.
If an appeal process is to be a fair, an employer should be open to all three possible outcomes.
Employers can impose lesser sanctions on appeal when they consider it is appropriate to do so in the light of the matters discussed at the appeal hearing. However, ordinarily, it is inadvisable for employers to increase sanctions on appeal. The ACAS Code of Practice on Disciplinary and Grievance Procedures warns against increasing sanctions on appeal and this advice is supported by case law.
For more details about disciplinary procedures including the handling of the appeal stage, please contact:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.