When a flawed appeal process makes a dismissal unfair

It is well established that the right of appeal against dismissal is an important part of a fair dismissal process. But appeals must be treated by employers as more than a tick-box exercise. Tribunals assess the fairness of a dismissal by considering the process as a whole, including any internal appeal. Serious failings at the appeal stage may lead to a finding that a dismissal was unfair, as an Employment Appeal Tribunal decision reminds us.

Milrine v DHL Services Ltd

In this case, the claimant, an HGV driver, had been off sick for more than two years before being dismissed on the grounds of medical incapability. He appealed against his dismissal, but the appeal was never heard.

The manager originally nominated to hear the appeal refused to do so because he believed the matter should stay within the claimant’s division. A replacement manager then failed to attend the rearranged hearing, leaving the claimant and his union representative waiting on site.

HR subsequently asked the claimant to decide which of the two managers should hear the appeal and to propose suitable dates. These arrangements were never confirmed in writing. The claimant then contacted Acas to start early conciliation and mistakenly believed this prevented him from continuing with his internal appeal. The employer did not clarify this with the claimant or check whether he still wanted to proceed. The appeal hearing never took place.

The EAT overturned the tribunal’s decision, holding that the only possible conclusion was that the dismissal was unfair. The tribunal had failed to take proper account of all the defects in the appeal process when assessing the overall fairness of the dismissal.

This was not simply a matter of an employer falling short of good practice. The EAT described the employer’s appeal process as “strikingly flawed”.

Key lessons for employers

Although the facts are unusual, the decision is a useful reminder of the basic principles around internal appeals. Employers should:

• take ownership of arranging and managing appeal hearings;

• ensure an appropriate appeal manager is appointed;

• communicate appeal arrangements clearly and in writing;

• act promptly if an appeal hearing needs to be rearranged;

• clarify any uncertainty about whether an employee wishes to pursue an appeal; and

• make sure the appeal is actually heard and the outcome communicated.

If an appeal stalls or arrangements break down, employers should take proactive steps to clarify the position and get the process back on track as quickly as possible.

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