We often focus on the best practice approach to taking formal action against an employee. Whether that process results in the termination of the employee’s contract or not, the appeal process is often overlooked. However, it is a very important part of formal proceedings and is crucial to the overall fairness of that process.
In this article we examine the right of appeal- when it applies, what it involves and dispelling some myths along the way.
When does the right of appeal apply?
The right of appeal applies to formal disciplinary action taken against an employee. This includes where a formal warning is issued and where a dismissal has taken place.
The right of appeal also applies to the decision made following a grievance procedure.
What is the purpose of the right of appeal?
The purpose of the appeal stage in formal proceedings, is to give the employee an opportunity to challenge the original decision and it also gives the employer the opportunity to rectify any procedural flaws, unfairness or bias which may render the original decision unfair or inappropriate in some way.
How are employees informed of their right of appeal?
The right of appeal should be included in the written outcome to the disciplinary or grievance process.
The employee should be informed to whom they should appeal and the timeframe they have for doing so.
Who should chair an appeal hearing?
The appeal hearing should be conducted by someone with the appropriate authority to overturn the original decision made by the disciplinary/grievance chair. Therefore, it is better to have the more senior person in the company as the point of appeal.
The person conducting the appeal should also be impartial, which means they should not have had any role in the disciplinary or grievance investigation stage or the formal disciplinary/grievance hearing.
If the person responsible for the original decision is also responsible for the appeal, they are essentially responsible for possibly overturning their own decision and this means that there is a strong risk of bias.
What about small businesses where there is not going to be someone else available to chair the appeal?
Its difficult for smaller businesses when it comes to appeal stages, or indeed larger businesses if perhaps a very senior member of staff is the subject of the formal proceedings.
In situations such as these, it may be permissible for the same person to chair the disciplinary/grievance and the appeal. Alternatively, you may wish to look into appointing someone externally to carry out the appeal.
What are the common grounds for raising an appeal?
The usual grounds for an appeal are (but are not limited to):
- In a disciplinary situation, an appeal raised because the original decision was too severe or biased in some way
- The correct procedure was not followed e.g., the right to be accompanied was not given, the appropriate notice ahead of the formal hearing was not given and so on
- The evidence or mitigation presented was not given due consideration
- New evidence has come to light
What if no grounds are raised for the appeal and the employee is simply ‘not happy’ with the decision, does an appeal have to proceed?
You often find that an appeal is raised where the employee doesn’t explicitly state their grounds for appealing the original decision.
This can be because the letter outlining the original decision was lacking in detail and the employee is raising an appeal to seek the information which they should have been provided with.
Occasionally the employee doesn’t state their grounds for appeal. The employer’s preference is usually to respond by stating that they have not set out their appeal grounds and as such the original decision stands. This is usually fine, especially if the appeal is for a low-level warning for example. However, if the appeal is against a dismissal it is better to respond by asking the employee to expand on their grounds for appeal rather than simply dismissing the appeal.
Rather than see the appeal stage as an inconvenience, see it as an opportunity to right a wrong and possibly avoid a potential costly tribunal claim.
Do you have to hear an appeal if it is submitted after the appeal deadline?
Again, it is better to air on the side of reasonableness here.
If the employee submits an appeal less than 24 hours after the deadline then it would be unduly harsh to turn it down based on the fact it was a little late, it may also be a missed opportunity as well if the grounds for appeal suggest serious procedural flaws or allegations of discrimination.
If the appeal is submitted late due to extenuating circumstances such as illness or personal circumstances, then again you are advised to allow the appeal to proceed.
If, however, it is submitted very late and without good reason it is likely to be reasonable for the employer to refuse to hear it.
What does an appeal hearing involve?
The appeal hearing is the employee’s opportunity to set out their appeal grounds in a formal setting.
Depending upon the grounds for the appeal, the hearing will usually take one of two forms:
- A rehearing. This is usually where the employee cites a procedural flaw. In the case of a disciplinary, the appeal would take the form of a rehearing of the original disciplinary and a complete re-examination of the evidence and mitigation.
- A review. This is usually where the employee raises concerns about the severity of the outcome, rather than citing a procedural flaw. The appeal hearing in this instance is a review of the original decision rather than complete re-examination of the case from scratch.
Does the right of appeal apply to redundancies?
Technically it doesn’t but it is considered best practice to allow an appeal to a redundancy dismissal, or indeed any formal action against an employee.
Remember– it\\\\’s an opportunity to rectify a wrong and may be the difference between receiving a tribunal claim or not.
Do you have to continue to pay someone until their appeal deadline has expired?
No. There is no obligation to pay someone after their date of termination up to the date their appeal deadline has passed, even if they do submit an appeal.
Of course, if they have been dismissed and are successful in being reinstated, they will be entitled to backpay from the date of their original dismissal.
Can I issue the P45 before the end of the appeal deadline?
It is important to provide a P45 in a timely manner but if you can, it is good practice to hold on to the P45 until the appeal period has passed because otherwise the employee may consider that any attempt at raising an appeal is futile.
Does an employee have to raise an appeal before proceeding to an employment tribunal?
No!
This is why it is never a good idea to take a chance on issuing a less than fair outcome and assume you will have the opportunity to rectify it at appeal- you may not get that opportunity.
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