Employment law- Appeal
What is the right to appeal?
You have the statutory right to appeal against all disciplinary and grievance decisions that you consider are wrong or unfair. Your employer should inform you of your right, and the time period for doing so (usually this is up to 5 working days from the original decision). You will usually need to make the request in writing, and set out the grounds for doing so.
You do not have the statutory right to appeal a redundancy, although there may be a right set out in your contract of employment, and even if there isn’t, many employers will still offer an appeal in a redundancy situation.
On what grounds can you appeal a disciplinary decision?
There are no restrictions on the potential grounds on which you can appeal a disciplinary decision. Indeed the ACAS code of practice makes it clear that you can appeal if you believe that a disciplinary decision is wrong or unjust. Your employer should not simply therefore deny you right of appeal.
The grounds of your appeal could include any of the following:
-new evidence which has come to light;
-the sanction imposed was too severe or disproportionate to the misconduct;
-there was no consistency in sanctions imposed for similar misconduct committed by another employee;
-there was unfairness or bias among the original decision-makers;
-there has been a failure of process (for example not giving enough time to prepare for the hearing, insufficient evidence or a failure by your employer to follow its own disciplinary process).
What are your employers obligations?
An appeal should be treated as an essential part of your employer’s disciplinary process. In fact the question of whether your employer’s decision to sanction you fell within ” a band of reasonable responses” applies to all aspects of the dismissal and this includes the appeal process. It means that the appeal is to be treated as part and parcel of the dismissal process.
The appeal should be dealt with by your employer as soon as reasonably practicable and wherever possible, by a manager who was not involved in the original disciplinary or grievance process- thus maintaining impartiality. Your employer will notify you of a date, time and venue for the appeal meeting.
Your employer must allow you to be accompanied at the appeal meeting by a work colleague, trade union representative, or trade union official if you reasonably request this.
You should be informed of the outcome of the appeal as soon as possible. It is unlikely that this will be immediately after the hearing, and you can usually expect a decision to be reached within a few days.
Can a dismissal still be fair if any employer refuses to hear an appeal?
Yes, in exceptional circumstances (for example where an employee is very combative and aggressive), an employer could take the view that an appeal process would be pointless. This is especially where the employee is entirely responsible for the breakdown in relationship. The Employment Appeals Tribunal has endorsed this approach as one of the relevant circumstances to take into account, especially in a small organisation.
Do you have to attend the appeal meeting in person?
If you would prefer not to attend an actual meeting, your employer may be prepared to deal with it only in writing, however you would lose the opportunity to question your employer in the same way as you would in a meeting.
Can your disciplinary sanction be increased just because you lodge an appeal?
You should not be punished by an increased sanction just because you have appealed. If, however, new evidence comes to light on a separate matter which works against you, then any new allegations should be dealt with by fresh disciplinary proceedings. It is not sufficient for your employer to simply increase the penalty from the original decision in the appeal process.
Should you tactically appeal a dismissal?
You are not obliged to lodge an appeal. Some may wish to do so, especially because they genuinely want to continue working for their employer, and they feel aggrieved about how they have been treated, or that their grievance has not been properly addressed.
If you wish to remain employed and you feel you have been wronged, then it certainly makes sense to appeal. In doing so, there is also the benefit of a clear paper-trail setting out the issues, so that you can be seen to be pursuing all avenues for redress. This can also add weight to any subsequent tribunal claim.
In addition, it can sometimes be worth lodging an appeal as a means of trying to reach a settlement with your employer if you have decided you want to leave. This is because there is the greatest incentive for your employer to reach a settlement after they have been notified of the appeal, but before it is actually heard. Your employer would avoid further time and expense in dealing with the process, and neither party loses face in terms of what the outcome may have been. Often, such negotiations can lead to a settlement agreement.
If however, you have no intention of remaining with your employer (which we see in most cases, often because the mutual trust and confidence has already disappeared at this stage), then you need to question whether it is tactically worth appealing. This is because there is a small chance that the appeal may be upheld (e.g. where there has been a failure of process by your employer, who then attempts to correct earlier errors). An appeal in these circumstances could work against you, and may also reduce your chances of winning in any subsequent tribunal claim that you decide to make.
What also needs to be considered is that a failure to appeal a dismissal can impact on any compensation that you are awarded at tribunal. A tribunal has a discretion to reduce any award of damages by up to 25% on the basis that you have unreasonably not followed an appeals process. If, however, you can show a good reason why you did not appeal (for example because there was little point because the relationship was beyond repair), then it may be that a minimal or no reduction would be made.
Should you appeal a grievance decision?
Yes, if you are unhappy with the decision and want to remain with your employer, then it is a good idea to appeal a grievance decision.
If, however, you consider the trust and confidence with your employer has dissipated too much to preserve the relationship, then there may be little point in appealing and you could simply resign and move on. Alternatively, you may consider making a claim for constructive dismissal. A negotiated settlement though would be the best course of action, before going down the tribunal route.
Am I entitled to appeal a redundancy dismissal?
There is normally no legal obligation for your employer to offer you an appeal against dismissal in a redundancy situation (unlike in disciplinary proceedings for misconduct). A dismissal will not automatically be unfair if a dismissal is not offered.
The ACAS code of practice does, however, say employers should be encouraged to offer an appeal in a redundancy situation. Furthermore, a tribunal could still find a dismissal to be unfair when having regard to all the relevant circumstances (as they should) and which includes whether the denying of an appeal fell outside the band of reasonable responses.
Your position will be bolstered if your employer’s policies and procedures actually allow for an appeal in a redundancy situation. If this is the case, then you should be offered an appeal. A failure to do so could amount to a stronger claim for unfair dismissal (assuming you have more than 2 years service).
Why might employers be reluctant to offer an appeal in a redundancy situation?
Many employers don’t like having an appeal process in redundancy dismissals as other employees could be affected if you won your appeal. By not offering an appeal, there is finality in the selection process.
On the other hand, allowing an appeal does have an advantage for an employer to fix some procedural flaws, for example a lack of consultation or not including a sufficient number of people in a selection pool. This will take away from you what might have been enough to make a particular dismissal unfair, and you would lose the opportunity to then make that claim. This is because your appeal after having been won, with the procedural flaw then ironed out gives you no basis to make a claim- even if the decision to dismiss you still stands.
Usually, your contract of employment will state what time limit you have to lodge an appeal. In the case of dismissal, a usual time limit is 5 working days from the date of termination of your employment but this could be longer or shorter.
Please note that the time limit for you to commence the employment tribunal process runs from the date of your termination of employment- not the date of the decision of your appeal. You have 3 months less one day from the date of termination of your employment to start the process. Don’t be caught out!
Are appeals generally upheld?
In our experience- no. The vast majority are not upheld. This is especially where your employer has already carried out a full investigation and gathered a lot of evidence in support of the original decision to dismiss. In light of this, serious consideration should be given as to whether it is worth appealing or in your interest to do so (as set out above). We are happy to discuss appropriate strategy with you.
In many cases, a negotiated exit is going to be in your best interests, and also, in your employer’s interests too. We have concluded thousands of settlements on this basis. This is a very tactical situation. Please feel free to contact us to discuss options.