In a recent case, the Employment Tribunal has provided a useful reminder of the importance of a fair appeals process and the impact this can have on whether a dismissal is deemed unfair.

In Milrine v DHL, the employee was absent from work due to sickness for more than two years. He was subsequently dismissed on the grounds of medical incapability. The employee appealed the dismissal. The nominated Chair of the Appeal Hearing declined to hear the appeal, and the replacement chair failed to show up for the scheduled appeal hearing.

The employer invited the employee and his representative to suggest an appeal manager and propose dates for a rescheduled meeting, but this was never formalised in writing. Ultimately, the appeal was never heard, and the employee brought a claim for unfair dismissal.
The Employment Tribunal found that the employee’s dismissal was unfair due to this defective appeal process. In forming its decision, the Tribunal Judge made the following points:

• An appeal is part of the overall assessment of fairness undertaken by the Tribunal. They will consider the entire dismissal process and the appeal process, even where it isn’t required to cure a previous defect or change the original outcome.
• It is not a foregone conclusion that failing to offer an appeal, or a procedurally defective appeal, will automatically result in a finding of unfairness, but it is an important factor considered by the Tribunal.
• Where dismissal was inevitable, but the process undertaken was unfair, this will affect the compensation the employee is entitled to.

In light of the above, employers should ensure that they are not treating an appeal as a procedural afterthought. The appeals process should be given the same due care and consideration as the original hearing, even if the original dismissal was for a justifiable reason. In these circumstances, even if the initial dismissal appears fair, a poorly handled dismissal or appeal can render a dismissal procedurally unfair and may increase the employer’s liability.

Employers must ensure there is clear communication, written confirmation of arrangements, proactive management, and adherence to internal and ACAS procedures from beginning to end. These are essential to maintaining fairness throughout the entire dismissal process.

If you need support with your internal policies or handling complaints of a similar nature, we’re here to help. Please get in touch with us at Employment@SchofieldSweeney.co.uk.