Is providing an appeal to a dismissal a fundamental legal requirement?
Other than in Northern Ireland, there is no statutory right for an appeal to a dismissal, however the ACAS Code of Practice on disciplinary and grievances procedures suggests an appeal should be provided against a decision made by the employer. Normally this would be reflected in a well drafted disciplinary and grievance policy.
With short service dismissals (under 2 years’ service), the dismissal process can be fast tracked via probationary review or employment review meeting (ERM) rather than following the disciplinary process if the latter is non- contractual; i.e. the short service employee has no contractual right to insist that the employer goes via the disciplinary route to dismiss. However, with the probation / ERM meeting there will still be a need to offer the employee the right to be accompanied by work colleague or trade union representative to the meeting as the outcome could be a dismissal.
Where the employee is dismissed without an appeal, the dismissed employee could argue that the process breaches the rules of natural justice and procedural fairness as an appeal may have allowed the employee to provide new evidence or to allow the employee to challenge the undue severity of the sanction or inconsistency of the penalty.
Unfair dismissal
Where the employee is dismissed without an appeal and there is allegation of unfair dismissal, the matter would be addressed under section 98(4) Employment Rights Act 1996 (ERA) for the Tribunal to determine (i) did the employer follow a fair procedure? and (ii) did the employer act reasonably in treating that reason as a sufficient reason for dismissal?
With short service dismissals the dismissed employee has no claim for unfair dismissal subject to certain exceptions like dismissals falling within automatic unfair reasons (like discrimination ) or breach of statutory rights ( a full list of dismissals that are deemed automatically unfair can be found in the Employment Act 1996). Where the disciplinary procedure is non- contractual then an appeal may not be necessary but where an appeal is provided, the appeal may identify matters that fall within the auto unfair reasons.
Cases of Employment Appeal Tribunal
An example of the above is the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd 2019 where the employee was dismissed by her housing association employer at the end of her six-month probationary review, over concerns about her performance that included concerns over her communication style and how she related to her colleagues and her manager.
The employee appealed against her dismissal and at the appeal hearing she disclosed that she suffered from depression, which could sometimes affect her behaviour and cause her to suffer short-term memory lapses. The appeal was unsuccessful, and she brought a claim for discrimination arising from disability section 15 Equality Act 2010.
Under section 15(1) of the Equality Act 2010 (EqA 2010), “discrimination arising from disability” occurs where:
Person A treats person B unfavourably because of something arising in consequence of B’s disability; and
Person A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
However, person A has a defence “if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability” (section (15(2), EqA 2010).
The EAT upheld the employee’s appeal as the employer arguably had actual or constructive knowledge of the disability before it made the decision to reject the employee’s appeal against the decision to dismiss her.
Another example where the Employment Appeal Tribunal (EAT) have emphasised the importance of having an appeal process was the case of Afzal v East London Pizza Ltd T/A Domino’s Pizza 2018 where the employee although had long service was dismissed without appeal as he failed to provide his employer with evidence which showed that he had made an in-time application to remain in the UK.
The EAT held the employer should have provided the employee with a right of appeal as the employee could have provided at the appeal stage enough proof of the right to work in the UK to be reinstated back to his job.
The standout point in this case was that the EAT regarded the appeal as an integral part of the dismissal process hence unless the employer can establish that the appeal would be a futile process it is prudent to consider allowing a dismissed employee the opportunity of an appeal against the dismissal. Where an appeal is offered it can be a review of the decision made or a rehearing of the matter especially where fresh evidence is submitted by the dismissed employee.
For further guidance on how to manage matters on dismissal or disciplinary please call the employment advice line or contact us here.
