To appeal or not to appeal

Employees sometimes do not want to appeal, as they cannot face another stressful hearing and they think that it will make no difference to the final outcome. If an employee intends to bring a tribunal claim, deciding not to appeal can mean that any compensation is cut by up to 25% for failure to follow the Acas Code. The Code says that where employees feel that disciplinary action taken against them is “wrong or unjust” they should appeal against the decision.

Employees who appeal knowing they definitely do not want their job back and would refuse it if offered face a risk, namely, what to do if the employer calls their bluff and offers to take them back. Employees who appeal in these circumstances but then refuse reinstatement when offered would find it difficult (although not necessarily impossible) to win compensation in an unfair dismissal case (see Bloxwich Fencing Limited v Banks UKEAT/0469/09/DM). In practice, successful appeals and reinstatements are very rare.

Where a worker has received a final warning and there are good arguments that it is unfair, the member should consider appealing against it, especially if a tribunal claim is likely. In theory, an employer can issue a more severe sanction as a result of an appeal. In most cases this is unlikely, as the employer will want to avoid looking as if it is acting beyond the “band of reasonable responses”.