Providing an appeal against a decision to dismiss has been regarded as an essential requirement of a fair procedure for many years. But as three relatively recent Employment Appeal Tribunal decisions remind us, there is always something new to learn about the place of appeals in the overall process.
Appeals will be assessed in context of overall fairness of process
The way British Airways handled the appeal process was one of the issues in last year’s ruling about the dismissal of a cabin crew member because of long-term sickness.
Rather than holding a series of review meetings before deciding to dismiss, BA approached matters by setting a provisional dismissal date, which it repeatedly postponed. Under the relevant procedure, employees had a right of appeal against a decision to dismiss.
In this case the claimant appealed against the setting of one of the provisional dismissal dates, but was not offered a further appeal against his actual dismissal, which happened several months later. The EAT endorsed the employment tribunal’s decision that the absence of a final appeal did not make the whole process unfair. There was nothing that could usefully have been added in a further appeal – all the relevant issues had been thoroughly explored in the first appeal.
Although in most cases offering an opportunity to appeal against the decision to dismiss is fundamental to a fair process, there will sometimes be exceptions, as this case illustrates.
For more details see our blog posting here.
Duty to make adjustments continues to apply during the appeal process
The duty to make reasonable adjustments is engaged all the way through the dismissal process, up to and including any appeal. The most recent illustration of this point comes from a decision involving a midwife at Chelsea and Westminster hospital who suffered with stress, anxiety and reactive depression.
In this case the EAT endorsed the employment tribunal’s decision that declining to extend the 10 working days’ time limit for appealing against her dismissal on health grounds amounted to a failure to make reasonable adjustments under the Equality Act.
However, both the tribunal and the EAT were of the view that in these particular circumstances, this breach of the Equality Act was not enough to make the whole process unfair. They took into account the many adjustments the employers had already made throughout the capability process, and the fact that an appeal against the decision to dismiss was very unlikely to succeed.
For more details see our blog posting here.
Successful appeal will normally result in automatic reinstatement
Both employers and employees need to be aware that most appeal procedures are set up so that a successful appeal against dismissal results in automatic reinstatement.
That can present difficulties if the employee is unaware of this rule, and has appealed to clear their name rather than genuinely wanting their job back. The latest ruling from the EAT on this point involved a worker at Iceland Foods who did not want to return to work.
For more details see our blog posting here.
Learn more about appeals
The final webinar in our free three part series on the disciplinary and grievance process will take place on 13 March. In this webinar we will be covering five key things you need to know about appeals.
You can register here.
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