It is good practice for employers to provide employees with an opportunity to appeal decisions made against them not least to help ensure the fairness of a disciplinary process. Here are some practical tips on how to run an effective appeal hearing.
Before the appeal hearing
When an employer’s decision is communicated to an employee, whether that be a disciplinary sanction or dismissal, the employee should be informed in writing of their right to appeal and given details of the deadline by which to do so. Best practice suggests allowing an employee at least five working days to appeal, although there is no actual timescale prescribed in law and, in some circumstances, it will be appropriate to consider an appeal which is raised outside of the suggested five working days.
The ACAS Code of Practice on Disciplinary and Grievance Procedures (the “ACAS Code”) requires the employee to state their full grounds of appeal in writing and specifies that any appeal should be heard without unreasonable delay. It is therefore important that employers give any appeal they receive priority and not simply put it to the bottom of the pile!
Employers should also check any internal appeal procedures which they have in place and, if those procedures are contractual, follow them carefully to ensure that the risk of a breach of contract is minimised.
Who should be at the appeal hearing?
Thought should be given at an early stage as to who would be best to hear the appeal. The ACAS Code states that an appeal must be conducted impartially and the appeal officer should be independent from the previous process and decision being appealed. The appeal officer should preferably be more senior than the person who made the original decision. It is also good practice for the appeal officer to not be inside the reporting line of the person who made the original decision. This helps to ensure the independence of the appeal officer.
If it is not possible to find someone internally who is more senior, the appeal officer must definitely not be someone less senior than the employee or previous decision maker, on the basis that person may not feel able to overturn the previous decision nor have sufficient standing with the employee to satisfy them the appeal has been taken seriously.
As an alternative, an employer may decide to implement an appeal panel consisting of two or more individuals to reduce the risk of bias or hire someone such as an external HR consultant to come in and hear the appeal guaranteeing the independence of the process. If this approach is taken, the employer needs to consider whether the external HR consultant is able to bind the organisation in relation to the decision which they make or whether their decision would need to be endorsed by someone within the organisation in order to make it binding.
It is also important to appoint someone, usually from within HR, to attend the meeting to support the process and to take notes.
Additionally, employees have a statutory right to be accompanied at appeal hearings, usually either by a colleague or trade union representative.
Review or rehearing?
One common issue that arises is whether the appeal should be conducted as a review or a complete rehearing.
- A review is where the appeal officer checks that the initial process and decision was handled properly. This is done by the appeal officer reviewing the original decision made and deciding whether it is reasonable based on the evidence captured through the initial investigations.
- A rehearing is where the appeal officer considers the matters afresh and comes to their own decision on what should happen and be decided. This will include re-interviewing the employee and potentially witnesses to be able to come to a fresh decision.
An employer’s disciplinary policy may dictate what format the appeal should take. Most of the time, the format will be led by the employee’s grounds of appeal. If the employee is alleging that the previous disciplining officer overlooked or missed a point, this can be taken into account in the appeal process by way of a review of the previous decision made. However, if the employee is alleging that the previous hearing officer was biased against them or that the hearing outcome was predetermined or additional information was missed, then a rehearing of the evidence may be the best format.
Appeals can be an invaluable tool for redeeming potentially unfair dismissals, as procedural defects in a disciplinary process can sometimes be rectified at the appeal stage. In order to do this, the appeal must be as comprehensive as possible and should take form of a rehearing of the original decision.
At the appeal hearing
When starting the appeal hearing, the appeal officer should begin with introductions and explain their role, the role of any companion and notetaker. This ensures that any companion knows their role and it makes it clear to the employee that the notes taken are for everyone.
Once introductions are over, the appeal officer should explain the purpose of the appeal meeting and invite the employee to explain their grounds for appeal to allow the appeal officer to build a full picture.
The appointed appeal officer should develop a solid understanding of the previous decision and all the points the employee raises on appeal. To assist with this, the appeal officer should have access to all evidence compiled in the original investigation and copies of any minutes taken in the original hearing. The appeal officer should not confer with the original decision-making officer prior to the appeal as this could result in a predisposed view being taken before the employee has the opportunity to present their points on appeal.
If new evidence appears during the course of an appeal, whether from the employee or from further investigations undertaken by the appeal officer, it should be considered as part of the appeal process. The ACAS Code states that, where new evidence comes to light as a result of further investigations, the employee should be given the opportunity to comment on it before a final decision is made.
An employer cannot increase a disciplinary sanction on appeal unless their contractual disciplinary policy expressly permits them to do so. ACAS warns employers against using appeals as a chance to penalise employees for questioning the original decision as this may deter employees from appealing in the first place.
After the appeal hearing
At the end of the appeal hearing, the appeal officer should ideally provide the employee with the outcome face-to-face. The appeal officer should follow up by confirming the decision in writing without delay to the employee and include a copy of the hearing notes.
An appeal outcome is normally final and if an employee is still unhappy with the outcome, they may be able to make a claim to an employment tribunal.
Therefore, whilst employers tend to focus heavily on original investigations and hearings, making sure the appeal is done properly is an important step in establishing a fair process and supporting any defence against potential tribunal claims.