Defective Appeal

UFaI have written before about the problem of whether one should appeal when an employee has been procedurally unfairly dismissed because of the risk of the appeal upholding the dismissal and remedying the breaches.

The problem is that sometimes an unfair dismissal is turned into a fair one thereby depriving the employee both of the possibility of remedy at an unfair dismissal hearing and  also ensuring that the employee’s dismissal is still maintained.

Last year the employment tribunal in Lawrence v NewLaw Legal Ltd demonstrated that the reverse can also apply – a fair dismissal can turn into an unfair one because of  poorly handled appeal process. In particular, the appeal manager conducted a meeting by telephone, did not ask any questions of the employee, and was over in a matter of minutes. The appeal was not, in the view of the tribunal “conducted with an open mind.”

Lawrence  is not a particularly noteworthy case but it is a helpful reminder that since employment tribunals have found that an appeal process is part of the dismissal process a faulty appeal can be grounds for an unfair dismissal claim (which, absent a further appeal cannot be remedied). As such, not only can should poor appeal process be relied upon for ACAS uplift purposes but as a ground of claim itself.

 

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