You have managed to keep everyone informed, do everything you were asked while remaining legal and following procedure. The outcome has been given and the employee is not happy so has appealed. You are on the home stretch; easy you think. Well yes and no. There are some significant mistakes that can still be made at this late stage especially in terms of impartiality of process as a recent Employment Appeals Tribunal (EAT) decision demonstrated. In this example Mr Blackburn worked for Aldi stores and raised a grievance. This was dealt with but Mr Blackburn wasn’t happy with the outcome so appealed. The problem was that the same chap who dealt with the original grievance also heard his appeal against the outcome of that process! Hardly impartial I’m sure you would agree but worse when the policy specifically stated a different manager should have been used who was impartial and ideally more senior than the original decision maker.
The employee resigned and claimed constructive dismissal for a breach of the implied term of trust and confidence that the company had allowed this to happen. The EAT agreed stating that the right to an impartial appeal was an important feature of the ACAS Code Acas Guide on discipline and grievances at work and in this case, the employer’s own grievance procedure. The EAT also reminded the tribunal that ‘the employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee’.
So, how can you ensure you don’t fall foul of this in an appeal? Again, here’s my guide on how to hold an appeal hearing; it’s easy as the same principles apply as for the disciplinary hearing:
1. Appoint an appeals officer. As shown above, this must be an alternative company representative (wherever possible, one who has not previously been involved in the case) and ideally if there are sufficient levels one senior to the disciplinary officer.
2. The appeals officer should ensure the employee has set out the grounds for their appeal in writing.
3. Then, the appeals officer must invite the employee to the appeal hearing as soon as possible. They must do it in writing, advising the date, time and place of meeting, confirming the statutory right of accompaniment by a colleague or trade union representative and ideally giving a minimum 1-3 days notice of the meeting dependant on complexities to allow the employee chance to prepare.
4. The conduct of the appeal should be a matter for the appeals officer to consider, but they may call such witnesses and consider any documents as they feel appropriate. Additionally, the appeal may be adjourned to conduct any further inquiries that the appeals officer believes are necessary.
5. At the completion of the appeal process, a decision should be given in writing as soon as reasonably practicable. If there is going to be a delay, the employee should be informed.
6. At the outcome of the appeal hearing, the original disciplinary sanction may be confirmed, overturned, increased or reduced to another stage. In the case of a gross misconduct dismissal, the dismissal should take immediate effect from the date when the decision to dismiss was intimated to the employee. If the dismissal was overturned on appeal, the employee would be reinstated with effect from the date of the original disciplinary decision.
And finally… it’s important to note for all involved that the appeal decision will be final and there will be no further right of appeal. So there you have it – a series of short ‘how to’ guides for disciplinary matters. Do you feel better able to conduct these important meetings now? I do hope so.
For more help and advice about disciplinary issues contact us at www.threedomsolutions.co.uk or follow us on twitter @3domSolutions