Appeals – A Second Chance For Employers?

Dear

We all make mistakes. Decca rejected the Beatles. The Hindenburg was filled with hydrogen rather than the helium for which it was designed. We usually have to live with the consequences of our errors. However, that rule doesn’t necessarily apply where an employer has dismissed an employee unfairly.

Why Would Appeals Be Useful For An Employer?

When an employee is sacked and is minded to claim unfair dismissal, they have a significant incentive to appeal. A tribunal can reduce any award of compensation by up to 25% if they don’t. But how can that be useful to an employer?

Dismissals are often found to have been unfair because of the procedure adopted by the employer – insufficient investigation, failure to give the employee a proper chance to deal with allegations and so on. Even if the employer addresses and rectifies such shortcomings on appeal, you might be forgiven for assuming that the dismissal would still be unfair. After all, the employee has effectively been denied the chance to appeal – the appeal has really been the “first instance” decision. However, the fact is that a tribunal will look at things from an all-round perspective, and if proper steps have indeed been taken, then it is likely to conclude that the earlier unfairness has been rectified and the dismissal will indeed be fair.

Appeals In Practice

A recent decision of the Court of Appeal has highlighted another way in which an employer might head off an unfair dismissal claim, which might be interesting for you. In Patel v Folkestone Nursing Home, the court confirmed that the effect of a successful appeal is that the original dismissal “disappears”.

There is clearly some pressure on a dismissing officer to uphold the original decision of the employer. They are assessing the judgment of a relatively senior employee in relation to a former employee who is almost certainly open to criticism of some sort from the employer. However, if on impartial analysis there is a serious risk that the dismissal will be found to have been unfair, upholding the appeal (possibly with a reduced disciplinary sanction) can get the employer off the hook.

Always Stay On The Right Side!

In all areas of dismissal, the role of HR is crucial. The possibility of defeat at tribunal has to be brought persuasively to the attention of the relevant decision-maker, if necessary (again) with the assistance of professional legal advice.

Of course, handling things like dismissals, tribunals and appeals can be tricky, especially if you’re running a small HR department. If you’re having issues with staff, policies or procedures, particularly around suspension and keeping it neutral, or just struggling to understand what you need to do to be compliant, it doesn’t hurt to get a little help and advice from the employment law experts. At Herefords, we offer hands-on, practical advice and guidance around all elements of employment law. Our service is all about guiding you through the minefield, helping you to understand the law and how it applies to your business, including any new changes that come in. And thanks to our new Employment Law Retainer, you can be confident that your key HR decisions and advice are compliant and appropriate. You can find out more about our employment law retainer by clicking here.

Or for more information on handling issues in the workplace, you can get in touch with us and book your free consultation.

Best,

Zahir Mohammed
Employment Solicitor
0203 669 2216