Caught By Appeal.

Many disciplinary, dismissal or grievance outcomes will have been given after much detailed investigation and analysis.  After that, an employee often chooses to exercise their right of appeal, probably taking up the valuable time of a senior manager who hasn’t previously been involved in the matter.  

It is highly likely that an employer’s policies and procedures dealing with disciplinary, dismissal and grievance decisions are likely to follow the Acas Code of Practice.  A failure to follow one’s own appeal procedure can not only cause an otherwise fair dismissal to be unfair (other than where any failure is inconsequential to the outcome), but can also give rise to a potential increase of up to 25% in compensation where that failure is also an unreasonable breach of the Acas Code.

As far as the employee is concerned, the appeal process gives the employer the chance to overturn what they believe is an incorrect decision.  In some cases, they argue simply that the original decision was wrong.  On other occasions, the appeal introduces new evidence.  However, the employee needs to be careful as any new evidence available at the appeal stage could also be taken into account in justifying a particular decision.  In a disciplinary or dismissal scenario, it would be particularly galling for the employee if the evidence up to that point would not have justified the initial decision.  A comprehensive appeal which upholds a decision also gives an employer the opportunity to correct previous procedural errors and omissions.  

In the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd, a tribunal considered the state of knowledge of an employee’s disability.  The employer had been unaware of an employee’s disability when taking the decision to dismiss them for performance concerns which had arisen during their probationary period. However, the employee did make them aware of his depression at the appeal hearing and the EAT found that they should have then taken into account the fact that this might have caused the employee to act in the way he did and for which he was dismissed.  

The EAT held that appeal outcome was “integral to the overall decision to dismiss”.  Therefore, it was necessary to examine the employer’s knowledge at the time of the appeal decision when deciding whether the decision to dismiss was discriminatory.  This means that an employer must take into account any new information which becomes available at the appeal stage and re-consider the original decision as if that information had been available previously.  In this way, the employee will not be penalised in the event that they do not make the employer aware of any potential link between their actions and their disability (whether deliberately or otherwise) until the appeal against any original decision.

The contents of this newsletter are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this newsletter. © Mundays LLP.

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