Overview
The benefits of allowing an employee to appeal against a disciplinary sanction are well understood when it comes to defending unfair dismissal proceedings. Similarly the importance of an appeal process in redundancy dismissals has long been recognised.Recent cases have illustrated that there can also be benefits in allowing an employee to appeal in a wider range of dismissals. These include the expiry of fixed term contracts and even where the employer believes it is unlawful to continue the employment.
The reasons for appeals
The opportunity to appeal against a disciplinary dismissal is a core requirement of the ACAS code of conduct, to which employment tribunals are legally bound to have regard when assessing the fairness of a dismissal. Since 2009 the incentives on both employers and employees to comply with the Code have been bolstered by provisions which allow tribunals to adjust compensation for unfair dismissal in cases of non-compliance.However, appeals remain relevant in a wide range of other dismissals. That is because the requirement for employers to act reasonably when reaching a decision to dismiss applies to all types of dismissals (subject in most cases to a two year qualifying period). In many cases a tribunal may therefore consider that an employer acted unreasonably in failing to allow an employee to appeal, even though no blame was attached to the employee in the dismissal process.
For example, case law has established that a dismissal on redundancy grounds will normally be unfair if the employee was not afforded an opportunity to appeal. There are also benefits to appeals outside the unfair dismissal context. For example, a fair dismissal process, including an appeal, can be helpful in defending proceedings under the Equality Act, or under the regulations providing more limited equal treatment rights for part-time and fixed-term employees.
Contractual and non-contractual appeal procedures
When assessing the fairness of a dismissal there is little practical difference between appeal procedures which are incorporated into the contract of employment and those which are (or at least stated to be) non-contractual.Contractual procedures are more common in the public sector, while many commercial organisations tend to favour more flexible non-contractual procedures. The scope of these procedures also varies widely, with some organisations confining them to strictly disciplinary issues and others having a standard process for dealing with a much wider variety of dismissals, including on grounds of redundancy and capability.
Whether contractual or non-contractual, an employment tribunal will expect an employer to follow its written procedures, and a material failure to comply may be enough to make a dismissal unfair. However that does not meant that in exceptional cases an employer is precluded from departing from or even going beyond the scope of its procedures where this is reasonable in the particular circumstances of the case.
Fixed-term contracts
The expiry of a fixed-term contract has been firmly within the unfair dismissal jurisdiction for over 15 years, but it has taken a while for case law and best practice to catch up. So quite apart from any additional rights under the Fixed-term Employees Regulations, a fixed-term employee with at least two years’ continuous service can bring unfair dismissal proceedings following the expiry of their fixed-term contract.Earlier this year the Employment Appeal Tribunal considered a claim from a locum consultant working for a NHS Trust. She had been engaged on a series of six month fixed-term contracts, and brought unfair dismissal proceedings when her final contract was not renewed. The EAT upheld the employment tribunal’s decision that her dismissal had been unfair. The tribunal had been entitled to take into account the absence of any opportunity to appeal when assessing the reasonableness of the Trust’s decision to dismiss.
Employees subject to immigration control
A few months later the EAT heard an appeal about an employee who had been dismissed because he had failed to provide evidence of his continued right to work in the UK in due time. He had been dismissed because the employers believed that his continued employment would be illegal. In fact he did have the right to work, and produced the necessary evidence after he had been dismissed. However his employers had failed to provide a right of appeal against the decision.The employment judge did not think that the absence of an appeal had made the dismissal unfair. The EAT was not so sure. It sent the case back to the employment judge with a direction to look at this issue again. It added that there were strong arguments for providing appeals in right to work cases, given that documents may be difficult to locate and deadlines tight. An employer would not be in breach of the law by reinstating employees if it emerged that they did in fact have the right to work in the UK, despite the employer reasonably believing this not to be the case at the time of dismissal.