Appeals

A defective disciplinary hearing, for example, 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).

An appeal does not normally have to be a complete rehearing of the case, but it must be comprehensive (Taylor v OCS Group Ltd [2006] EWCA Civ 702).

An employer is not allowed to increase the sanction on appeal, for example, turning a Final Warning into a dismissal. The only exception is where the written dismissal procedure expressly allows this. It makes no difference whether the appeal hearing is a “review” or a “rehearing” (McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031).

An employee is free to abandon their appeal at any stage before the final decision, even after the evidence has all been heard. And once the appeal is withdrawn, the employer is not allowed to carry on with it (McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031).

Except in the very smallest organisations, the appeal should be heard by someone other than — and senior to — the dismissal decision-maker.

The effect of a successful appeal is that the dismissal vanishes automatically, the contract revives and employment continuity is preserved (Roberts v West Coast Trains [2004] IRLR 788). The dismissal vanishes as soon as an appeal panel decides it is unsafe and can no longer stand. This is regardless of whether the employer agrees to reinstate, or even communicates the successful outcome to the employee (Salmon v (1) Castlebeck Care (Teesdale) Limited (in administration) and (2) Danshell Healthcare Limited [2014] UKEAT/0304/14/DM).