Appeals: why they are important
For a long time, employment lawyers and HR professionals alike have focussed on the question of whether an appeal that was done well could repair the damage from a badly done dismissal. The Employment Appeal Tribunal case for Milrine vs DHL has turned that question on its head.
In this case the original dismissal was considered by the Tribunal to be fair, with some reservations from the Tribunal. However, the way that the employer had done the appeal meant that it had turned it into an unfair dismissal. To use a football analogy, the employer was winning the game 1-0 heading into injury time, they then lost focus and ended up conceding a couple of late goals to lose the game.
Let’s have a look at the facts of the case: Mr Milrine, was a long-serving HGV driver who had been dismissed for incapability after more than two years’ absence from work due to medical conditions including vertigo and vestibular migraines. His employer, DHL Services Ltd, dismissed him on the grounds of capability. Remember, that bit the Tribunal considered was just about fair.
So, what went wrong in the appeal process? The following is really a rogue’s gallery of how not to carry out an appeal process.
The nominated appeal manager declined to hear the appeal. His replacement did not attend the rescheduled hearing, leaving the Claimant and his union representative waiting on site. The HR business partner then placed the onus on the Claimant to choose the appeal manager and propose dates, without confirming this to him in writing. When the Claimant commenced ACAS Early Conciliation – he believed it would prevent a continuation of the car crash of his appeal process – the company did not tell him that his understanding was incorrect. The internal appeal never took place.
This serves as a reminder to employers that procedural fairness doesn’t just include the initial decision to dismiss, it also covers any internal appeal process.
What does this mean?
At the outset of a disciplinary process, as well as identifying a disciplinary hearing manager, you also need to identify who would hear any appeal. This needs to be someone senior, who has not been involved in any of the earlier stages of the process. If an appeal is requested, that person needs to be able and willing to give the appeal the time and attention that an employment tribunal will expect. The appeal manager needs to be seen to be treating the appeal as a priority and to be taking it seriously.
