Employment Tribunal · Unfair Dismissal

To Appeal or not to Appeal

When an employee is dismissed they face a decision whether they should appeal against their dismissal using internal appeal mechanisms or apply directly to an Employment Tribunal.

Naturally, when an employee has been dismissed and the employee feels that decision is wrong they will frequently want to exercise their right to appeal against that decision. That is understandable since the appeal is probably the last time the employee will have the chance of getting their job back, however slight that likelihood is.  Indeed, the ACAS Code of Practice (paragraph 26) recommends that employees should appeal: “Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision.”

The difficulty for employees however is that an appeal could harm a subsequent claim for unfair dismissal. The EAT in Adivihalli v Export Credits Guarantee Department made clear that a properly conducted employer’s appeal can correct errors in the preceding disciplinary hearing:

Where an Industrial Tribunal is considering a complaint of unfair dismissal and where an employee under his contract of employment has the right to appeal and exercises that right, in considering whether the employee has been fairly or unfairly dismissed, the Industrial Tribunal should have regard to the overall process of the termination of the contract of employment, or, in other words, the dismissal.

In some circumstances unfairness at the original dismissal stage may be corrected or cured as a result of what happens at the appellate process: that will depend on all the circumstances of the case. It will depend upon the nature of the unfairness at the first stage; the nature of the hearing of the appeal at the second stage; and the equity and substantial merits of the case. Whether or not an appeal cures a procedural defect is not a matter to be determined by reference to the precise category into which appeal process falls.

In short if an employees receives a decision to dismiss but there were significant errors (especially procedural errors) by the employer in how they came to that decision then the employee is faced with a difficult decision. Do they appeal the decision knowing that reinstatement is very unlikely but that the appeal could ‘remedy’ the errors in the earlier process and mean a successful legal challenge is much less likely or do they bypass an appeal (and risk a reduction for noncompliance with the ACAS Code notwithstanding potential Polkey adjustments) and pursue straight to an Employment Tribunal?

The recent case in Adeshina v St George’s University Hospitals NHS Foundation Trust highlights this dilemma. The claimant was accused of gross misconduct and, after a lengthy delay in the disciplinary process was dismissed. The claimant appealed that dismissal but the appeal procedure upheld the decision to dismiss. She then subsequently lodged an Employment Tribunal claim for unfair dismissal (along with other claims).

At the ET hearing and in the ET judgement the Respondent came in for significant criticism. It found that:

  • the decision maker had relied on information and evidence that had not been put to the claimant. The result of this was it found the decision maker could not “have held a reasonable belief in the Claimant’s misconduct” which is necessary for a fair dismissal
  • The decision maker did not make a reasoned finding for all aspects of the allegations against the complainant but nevertheless found those complaints proven without reasonable grounds for doing so.
  • In the dismissal the Respondent also relied on “other factors” which had not been put to the claimant.

The result was that there is no doubt that on the basis of the process the Respondent applied the claimant had been unfairly dismissed and, had the claimant not appealed the dismissal but instead lodged an Employment Tribunal claim her claim would have been successful with the possibility of a compensation award and even (albeit very unlikely) an order for reinstatement.

As it is however the claimant did appeal and the ET found that “the appeal process was fair and had the effect of curing the deficiencies at the dismissal stage.  Taken overall, the Claimant’s dismissal was fair.” The result therefore is that what would have been a successful ET claim was transformed (by seeking to resolve the matter through internal disciplinary procedures) into a losing case.

The case does raise the question as to whether it is always best for a dismissed employee to actually appeal a dismissal – normally this will be appropriate but in some cases it may not be in an employee’s interest to do so. Or to put it another way, sometimes you’re damned if you do, damned if you don’t.

Cases Referenced

Adeshina v St George’s University Hospitals NHS Foundation Trust [2015] UKEAT 0293_14_0105

Adivihalli v Export Credits Guarantee Department [1998] UKEAT 917_97_2703

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