Appeals





A defective disciplinary hearing such as one where the employee did not get the chance to prepare a case can sometimes be put right on appeal, as long as the person hearing the appeal was not involved in the earlier hearing (Byrne v BOC [1992] IRLR 505). Appeals should be heard without delay. Failure to allow an appeal can make an otherwise fair dismissal unfair (West Midlands Cooperative Society v Tipton [1986] ICR 192). This is because it denies the employee the chance to show that the dismissal was unfair (London Central Bus Company Limited v Manning [2013] UKEAT/0103/13). 





Acas says that where possible (in other words, except in very small organisations), the appeal should be heard by a different, more senior manager. Whoever hears the appeal must be able to approach it unbiased, and with an open mind (Ethnic Minorities Law Centre v Deol [2015] UKEATS/0022/14/SM).





An appeal need not normally be a complete rehearing but it must be comprehensive. Fairness will depend on the process as a whole, including any appeal (Taylor v OCS Group Ltd [2006] EWCA Civ 702). 





The employer cannot increase the sanction on appeal, for example, turning a final warning into a dismissal, unless the written dismissal procedure clearly allows this (McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031). 





The right to appeal belongs to the employee, who is free to abandon their appeal at any stage until the final decision is taken, even after all the evidence has been heard. Once withdrawn, the employer cannot continue with it (McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031).





Where an appeal succeeds, the dismissal vanishes automatically, the contract revives and employment continuity is preserved (Roberts v West Coast Trains [2004] IRLR 788). It is as if the dismissal never happened, triggering a right to back pay. The dismissal vanishes as soon as the appeal panel decides the dismissal is unsafe and can no longer stand. This is regardless of whether the employer agrees to reinstate the employee, or even tells the employee that their appeal was successful (Salmon v (1) Castlebeck Care (Teesdale) Limited (in administration) & Another[2014] UKEAT/0304/14/DM). Because a dismissal vanishes on a successful appeal, an employee whose appeal succeeds does not normally get the choice whether or not to return to work. And they also lose their ability to claim unfair dismissal (Patel v Folkstone Nursing Home Limited [2018] EWCA Civ 1843). Anyone who genuinely does not want to return to work should carefully weigh up the risks of a successful appeal. 


The dismissal of someone because they cannot prove their right to work in the UK is likely to be unfair if no appeal is offered to give them the opportunity to produce the necessary proof (Afzal v East London Pizza Limited t/a Dominos Pizza [2018] UKEAT/0265/17/DA).


In cases where the Acas Discipline and Grievance Code applies, an unreasonable failure to appeal (or to offer an appeal) can result in a percentage cut or increase in compensation (section 207A(3), TULRCA).