![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201509.jpg)
To appeal or not to appeal
[ch 10: pages 67-69]Employees are sometimes reluctant to appeal, as they cannot face another stressful hearing and they think nothing can change the final outcome. If the member intends to bring a tribunal claim, deciding not to appeal will mean a cut in any compensation by up to 25% for failing to follow the Acas Code. The Code says that where employees feel that disciplinary action is “wrong or unjust”, they should appeal.
Employees who appeal knowing they do not want their job back run the risk of their employer calling their bluff and offering to re-employ them. Refusing a reasonable offer of reinstatement can lead to a cut in compensation in a successful unfair dismissal claim. This is because dismissed employees must take reasonable steps to mitigate their losses by, for example, accepting a reasonable offer to return to their old job.
In reality, successful appeals leading to reinstatement are rare. In addition, where an employer has fundamentally breached the duty of mutual trust and confidence, especially in cases involving interpersonal conflict, a tribunal is unlikely to regard as unreasonable a decision to refuse an offer of reinstatement to the same role in the same workplace (see Bloxwich Fencing Limited v Banks UKEAT/0469/09/DM).
Sometimes members decide not to appeal because they worry that the sanction might be increased after the appeal, for example from a final warning to dismissal. Here, a new ruling, McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031, significantly helps members. The case confirms that:
• employers are not allowed to increase the sanction on appeal unless the written wording of the contract or disciplinary procedure clearly allows this. This is regardless of whether the appeal hearing is a “review” or a “re-hearing” (see below). The purpose of an appeal is to give the employee a chance to persuade the employer to change its mind. It is not to give the employer another bite at the cherry by, for example, increasing the punishment; and
• an employee is free to abandon their appeal at any stage before the final decision is made, even after all the evidence has been heard. Once the appeal has been withdrawn, the employer is not allowed to carry on with it.
A defective disciplinary hearing, for example, one where the employee has not had the chance to put his or her case, can often be put right on appeal, as long as the person hearing the appeal was not involved in the earlier stage (Byrne v BOC [1992] IRLR 505).
There is no rule that only a complete rehearing of the case can cure a defect in a dismissal decision. As always, the answer depends on the facts of each case, in particular, the seriousness of the procedural flaws and their impact on the overall fairness of the outcome. The procedure, taken as a whole, must be fair, looking, for example, at the open mindedness of the officer hearing the appeal, the thoroughness of the appeal hearing and the procedure used (Taylor v OCS Group Ltd [2006] EWCA Civ 702). Employers can sometimes cure even very serious procedural flaws at the appeal stage:
Mr Taylor, a profoundly and prelingually deaf IT worker, was sacked by cleaning services outsourcers OCS Group for forwarding to himself three emails he found in a colleague’s mailbox when fixing an IT problem, in breach of the company’s policy on accessing the terminals of other staff members. At the investigatory meeting, he mistakenly thought his line manager was representing him, so he refused an offer to be accompanied. He was asked a series of questions in writing and in response he admitted forwarding the emails, saying it was “out of character”.
Immediately that afternoon, OCS held a disciplinary meeting. Mr Taylor struggled to lipread the manager holding the disciplinary and no interpreter was provided. At the end of the meeting, which lasted 15-30 minutes, OCS decided Mr Taylor was guilty of gross misconduct and he was sacked. It was clear from the notes of the meeting that he had not understood what was happening in the meeting.
He appealed and at the appeal hearing, he was represented by an interpreter. His sister attended as his companion and she took over the interpreting when the interpreter had to leave part way through. The appeal meeting was conducted by a senior manager and lasted four hours. Mr Taylor was asked to explain each of the admissions he made at the investigation stage and to indicate what he would have preferred to have said.
The employment tribunal found that the dismissal hearing was so hopelessly flawed that the appeal hearing could not cure it, and the dismissal was unfair. However, the case reached the Court of Appeal who overturned the tribunal’s decision. The Court of Appeal said that whether or not an appeal can “cure” a defective first hearing will depend on all the facts and on whether the overall process is fair. In this case, the Court of Appeal decided that given the quality of the appeal hearing, the overall process was fair.
Taylor v OCS Group Limited [2006] EWCA Civ 702
Perhaps the crucial lesson for reps from the Taylor case is that it underscores the importance of early involvement. A workplace based rep interceding on behalf of a worker in this kind of scenario in a unionised setting might well have been able to avoid the dismissal and persuade an employer to agree a less draconian sanction such as a Final Warning.