Appeals in Disciplinary and Grievance Hearings: A reminder and a warning

Appeals against Dismissal

A basic requirement of a fair dismissal is to allow the employee the right of appeal. Failure to do so can make an otherwise fair dismissal unfair. However, if done properly, it can be an opportunity for the employer to turn what otherwise might have been unfair into a fair dismissal.

A dismissal may be alleged to be unfair because the employer did not carry out a full investigation, or the employee was not provided with the evidence in advance, or the employee was not informed before the hearing that they could be dismissed, or that the person who heard the disciplinary hearing was biased (e.g. because they had been involved in the investigation).

When an employee appeals all these matters can be “cured” if the employer carries out further investigations (if the previous one was insufficient), considers all evidence in advance of the appeal hearing, and if the person hearing the appeal has had no previous involvement in the process. As long as the appeal is a proper rehearing then it could render a previously unfair hearing fair.

Appeals in a Flexible Working Request

The recent case of Little v Richmond Pharmacology Ltd extended the above principle to a discrimination claim. The employee had been refused a request for flexible working. She appealed but resigned before the appeal hearing. At the appeal the employer offered her the opportunity to return to work on the flexible hours she requested for a 3-month trial period. She refused and brought a claim of indirect discrimination. The Tribunal and Appeal Tribunal found that as the employer had reversed the refusal of flexible working there had been no indirect discrimination.

Grievance Appeals

In the recent case of Blackburn v Aldi Stores, the employer’s Regional Managing Director heard a grievance and rejected it. When the employee appealed, the same manager dealt with the appeal. The Tribunal held that the failure to offer a full appeal when a grievance has been rejected could amount to a breach of contract or breach of the “implied duty of trust and confidence” which could form the basis of a successful claim for “constructive” unfair dismissal.

The lesson is to always offer an appeal and ensure that it is dealt with properly.  Although a claim will usually be based around the subject matter of a grievance, an inadequate appeal process could certainly strengthen the employee’s claim.