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MILS Case Study: Conducting an AppealBack

MILSLogo2“One of my managers dismissed a Salesman for gross misconduct.  He has now appealed the decision.  On looking at the dismissal, I am worried that my manager didn’t consider the evidence of some witnesses and it may be procedurally flawed, but I don’t want to undermine my manager, what should I do?”

If you are considering an appeal, you should ideally be more senior than the disciplinary officer and should not have been involved in the original disciplinary decision. Prior to the hearing it is sensible to obtain grounds of appeal in writing from the employee, read through all the documents and fully prepare yourself for the meeting.

At the appeal meeting, you should be asking the employee to expand on the grounds of appeal, fully discuss the same and consider why they are saying that the dismissal or disciplinary sanction was unfair.

In situations as described above, where procedural irregularity is alleged, you can also conduct the appeal hearing effectively as a full re-hearing of the case, i.e. considering all the evidence yourself, including any new evidence, interviewing any witnesses who were alleged not to have been interviewed and asking previous witnesses to confirm their previous evidence.  If there is new evidence the worker wishes to present, then consider that new evidence in full, even if it wasn’t available to the original manager who gave a disciplinary decision.

Make sure that matters are fully noted with proper minutes or (with the employee’s agreement) a recording, so there can be a mutual transcript provided to both parties following the appeal.

After the meeting you should adjourn to consider the decision and investigate any new points.  It may be that on further investigation of the appeal you need to convene the second part of the hearing to relay evidence back to the employee to obtain further representations before a final decision can be given.

Procedurally the most common mistakes employers make are; (a) taking into account evidence which wasn’t disclosed to the employee, or (b) failing to investigate matters, (often for fear of uncovering evidence that it is in the employee’s favour).  All evidence should be considered at a disciplinary hearing and/or appeal hearing.  Employment law is generally supportive to employers in this area, provided they reasonably investigate the relevant evidence. It will often be the case that there is some evidence in support of an assertion, and some evidence against it, but provided the Appeal Officer has carefully weighed that evidence, then the law says that a tribunal should not be trying to run the business or overturn the decision of the employer (provided the decision is not perverse or manifestly unreasonable, such that another employer could not have come to the same decision).

Finally, remember when considering an appeal, that a reasonable offer to reinstate an employee (if the Appeal Officer finds that a dismissal has been unfair) can rectify errors with the dismissal and if an employee refuses the offer to reinstate, then they may lose the right to any compensation in a tribunal.

Andrew Macmillan, Solicitor, Motor Industry Legal Services

Posted by Sue Robinson on 11/11/2016