Fixing procedural defects at an appeal hearing

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 had not been involved in the earlier stage (Byrne v BOC [1992] IRLR 505).

There is no rule that only a complete re-hearing of the case can cure a defect in the original dismissal decision. What is needed to cure a defect will depend on the facts of each case and, in particular, the seriousness of the procedural flaws and their impact on the overall fairness of the case. The basic test is that the procedure, taken as a whole, needs to be fair, looking, for example, at the open mindedness of the decision-maker at the appeal stage, the thoroughness of the appeal hearing and the procedure adopted. In practice, the facts of the leading case, Taylor v OCS Group Ltd [2006] EWCA Civ 702 illustrate how easy it can be for an employer to cure even the most serious procedural flaws on appeal.