The case of McMillan v Airedale NHS Foundation Trust called into question an employer's right to increase a disciplinary sanction on appeal. We look at the legal principles behind an appeal process and give practical tips on how to handle appeals.
Why offer a right of appeal?
The appeal stage in a disciplinary or grievance process is important since it gives the employee another opportunity to put forward their case and the employer the opportunity to address any unfairness in the process carried out to date. The importance of the right of appeal is reflected in the Acas Code of Practice on disciplinary and grievance hearings. Indeed, if an employee does not appeal and brings a successful unfair dismissal claim, the employment tribunal may reduce any compensatory award by up to 25% if it decides the failure to appeal was unreasonable.
What steps should an employer take?
It is good practice to advise an employee in writing of their right of appeal when the disciplinary decision or grievance outcome is communicated. Any deadline to lodge the appeal should also be stated. It is worth noting that the Acas Code itself does not specify a time limit in which appeals should be lodged and therefore it is advisable for employers to consider an appeal in all but the most exceptional circumstances.
Following receipt of an appeal, employers should arrange for an appeal hearing to take place without unreasonable delay, and should allow the employee to be accompanied at the hearing by a work colleague or trade union official. It is also important to comply with the appeal requirements set out in any contractual disciplinary or appeals procedure.
Ideally any appeal should be dealt with by someone not previously involved in the case who is more senior than the person responsible for making the original decision. It is also good practice for the appeal officer to be outside the reporting line of the person who conducted the original hearing. This will help avoid allegations that the appeal officer was biased or simply supported their subordinate's decision as a matter of course, rather than considering the matter afresh or properly reviewing the decision.
It should make clear to the employee what form the appeal process will take, that is whether it will be a review of the original decision or a complete re-hearing of the case. The employee should also be informed of the potential outcomes of the appeal process. The McMillian case made it clear that unless a contractual disciplinary policy explicitly contains the right for an employer to increase a disciplinary sanction on appeal, the employer will not be permitted to do so.
Review or full re-hearing?
A review will simply involve the appeal officer looking at the original decision and whether that decision is a reasonable one based on the evidence available at the original hearing. A full rehearing will be just that, a case of re-interviewing the employee and potentially taking further witness evidence or re-interviewing the original witnesses in order to come to a fresh decision. It has been suggested that where the appeal will have a significant effect on the employee's ability to pursue their chosen career, a full rehearing may be appropriate.
In addition, it is possible that procedural defects in an initial disciplinary hearing may be remedied on appeal provided that the appeal is sufficiently comprehensive, which is likely to involve a rehearing.
What if the employee introduces new evidence?
New evidence arising at the appeal stage may be taken into account in justifying a dismissal, even if the evidence available at the initial disciplinary hearing would not have justified it. However if new evidence arises during the course of the appeal, the employee should be given a full opportunity to comment on it before a decision on the appeal is taken in order to ensure a fair process is followed.
- always give a right of appeal against any disciplinary sanction or grievance outcome
- make sure the appeal is dealt with by someone impartial and more senior
- give the employee the right to be accompanied at the appeal hearing
- inform the employee of the type of appeal process to be followed and potential outcomes
- if new evidence is available give the employee an opportunity to comment on this
- if a dismissal is overturned and the employee reinstated, they will be entitled to back-pay and their continuity of employment will not have been broken
- keep careful records of the appeal process followed
Note: A version of this article was published on 7 October 2014 in PM Daily: HR news, jobs & blogs | Human resources jobs, news & events - People Management
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.