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). Appeals should be heard without delay.


Acas says that where possible (i.e. except in very small organisations), the appeal should be heard by a manager who is different from and senior to the manager who made the original decision. The person hearing the appeal must be able to approach the appeal unbiased and with an open mind (Ethnic Minorities Law Centre v Deol [2015] UKEATS/0022/14/SM).


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, unless 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 all the evidence has been heard. Once an appeal has been withdrawn, the employer is not allowed to carry on with it (McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031).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). The dismissal vanishes as soon as the appeal panel decides it 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 (See Salmon v (1) Castlebeck Care (Teesdale) Limited (in administration)and(2) Danshell Healthcare Limited [2014] UKEAT/0304/14/DM).