A recent Employment Appeal Tribunal (EAT) judgment is a reminder that even where the initial decision to dismiss appears fair, defects in the appeal process can still render the dismissal unfair overall. The case highlights the importance of treating the appeal stage as an integral part of the dismissal procedure rather than a procedural formality.
Background
Mr Milrine, an HGV driver, was dismissed for medical incapability following a sickness absence lasting more than two years. He appealed against his dismissal, but the nominated appeal manager declined to hear the appeal and the replacement manager failed to attend the scheduled hearing. His employer then asked Mr Milrine and his representative to choose an appeal manager and propose dates for a meeting, but it did not put this request in writing and the arrangements remained unclear. As a result, the employer did not deal with Mr Milrine’s appeal and he subsequently brought an unfair dismissal claim.
EAT decision
The employment tribunal found that Mr Milrine’s dismissal was fair. The EAT allowed his appeal and substituted a finding of unfair dismissal.
It emphasised that the appeal stage forms part of the overall dismissal process. When assessing fairness, tribunals must consider the procedure as a whole, including any internal appeal. A defective appeal process may therefore render an otherwise fair dismissal unfair.
In this case, the EAT held that the defects in the appeal were particularly serious. These included confusion over who would hear the appeal, the failure of the appointed manager to attend the hearing and the employer leaving the claimant to arrange the appeal himself. The EAT considered that these failings fell well short of good industrial relations practice. In those circumstances, the dismissal could not be regarded as fair overall. The EAT emphasised that the more striking the defects, the more explanation the tribunal must give if it still finds the dismissal fair.
However, the EAT reiterated that flaws in an appeal process do not automatically render a dismissal unfair. The impact will depend on the circumstances of the case. Where the employer would have dismissed the employee in any event, this may instead affect compensation rather than liability.
Considerations for employers
The decision highlights the importance of handling appeals carefully and effectively. Employers should take away the following points:
- Treat the appeal stage as an integral part of the dismissal process, not a procedural formality.
- Ensure an appropriate and sufficiently senior manager, who has not previously been involved in the process, hears any appeals.
- Communicate clearly with employees about appeal arrangements and confirm these in writing.
- Where complications arise, take active steps to resolve them rather than leaving arrangements to the employee.
Ultimately, this decision serves as a reminder that tribunals assess the fairness of a dismissal by considering the procedure as a whole. Even where the initial decision to dismiss is reasonable, shortcomings at the appeal stage may still undermine the overall fairness of the process.
