The opportunity to appeal against any disciplinary decision is essential to natural justice and in order to comply with the minimum procedural requirements imposed by the Employment Act 2002 ( minimum dismissal procedures ). A failure to allow an employee a right to appeal against a decision to dismiss will make the dismissal unfair. Further, if the employee does not pursue an appeal or if the employee tries to appeal but the employer does not allow him or her to do so, an employment tribunal has power to reduce or increase any compensation it awards by between 10 and 50 per cent to reflect who was at fault.
In dealing with an appeal against a decision to dismiss, the disciplinary procedure should make clear what effect the lodging of the appeal has on the employee's contract. This is important because the date the contract ends may affect whether the employee has completed the one year's service he or she needs to qualify for protection from unfair dismissal. Also, the three-month time limit for bringing an unfair dismissal claim runs from the date that the contract ends.
For example, a disciplinary procedure could state that if an employee successfully appeals against dismissal, he or she will be regarded as having continued in employment pending the hearing of the appeal and will be reinstated with full back pay. However, if the appeal is unsuccessful the employee's original date of dismissal will stand. Alternatively, the procedure could state that an employee who appeals against dismissal remains an employee but is suspended on full pay pending the hearing of the appeal. If the appeal is successful, the suspension is lifted; if the company decides to dismiss the appeal, the employee's contract will come to an end at the date of that decision.
Under the Employment Rights Act 1996, employees must be notified in writing, within two months of starting work, of the person to whom they can apply if they are dissatisfied with any disciplinary decision that relates to them but this does not apply to any disciplinary decision that relates to health and safety at work. If there are any further steps to take after making that first application, they must also be explained, either in the written information given to the employee or in a document that is reasonably accessible to them.
The national procedural agreements for the avoidance of disputes provide that employees who are dismissed can contest their dismissal, if necessary through an external conference. The intention of the agreements is that internal procedures should be completed before resort to an external conference. Where an employee seeks an external conference, the company should contact its Association, which will ensure that the conference is arranged without delay. If an employee who uses one of these procedures has been dismissed with notice, he or she remains an employee until agreement is reached or the procedure is exhausted, or until his or her notice expires, if that is later. An employee who has been summarily dismissed for gross misconduct, on the other hand, does not remain an employee while pursuing his or her rights under the procedure.
Those companies that observe these national procedural agreements may wish to consider whether they should be the only procedure for appealing against dismissal, or whether a separate avenue of appeal should also be provided.
Disciplinary decisions may be appealed on a number of grounds. The employee may want to challenge the manager's conclusion that the employee committed the act of misconduct or may query the severity of the penalty. New evidence may have come to light since the decision was taken, or the employee may wish to argue that the disciplinary procedure was not followed. If an appeal is raised outside the time limit, the employer should consider whether the delay is unreasonable before rejecting the appeal.
The ACAS Code advises that a time limit should be set for lodging an appeal. The Code suggests that five working days is usually long enough. The employee should put any appeal in writing. On being notified of an appeal, the employer should invite the employee to attend a meeting at which it will be considered.
Wherever possible, the person hearing the appeal should be a more senior manager who has not previously been involved in the disciplinary procedure. In small companies this may be impractical, in which case the person dealing with the appeal should act as impartially as possible.
The employee has the right to be accompanied at the appeal hearing by a work colleague or union official of his or her choice (the right to be accompanied ).
If new evidence has come to light since the disciplinary hearing, it may be necessary to investigate further before the appeal hearing is held, and the employee should be given the opportunity to comment on the new evidence.
The manager conducting the appeal hearing should begin by introducing the employee to those present and explain why they are there; the purpose of the hearing should also be stated. The employee should then be asked to say why he or she is appealing against the decision. If there is any question as to whether the original hearing was carried out properly, it is usually advisable to deal with an appeal by completely rehearing the evidence against the employee and the employee's case. The appeal hearing can then put the earlier mistakes right (unless those earlier mistakes related to failure to apply the statutory minimum dismissal procedure).
After the hearing is over, the manager should take time to consider the proper outcome. The employee should be informed of the results of the appeal and the reasons for the decision as soon as possible, and this should be confirmed in writing. Where appropriate, the employee should also be told that this is the final stage of the disciplinary procedure.