Wrigleys’ Essential Employment Guide - The Disciplinary Process Part 3
Part three - Appeals.
All employees have the right to appeal any decision made at the end of a disciplinary process. This right to appeal extends to both the decision to uphold or not uphold an allegation as well as to the sanction.
Therefore, an employee could appeal on the basis that they accept the decision to uphold an allegation of misconduct, but they do not accept the sanction applied (e.g. they think they should have received a written warning as opposed to a final written warning based on the disciplinary policy or because the decision is inconsistent with a similar matter the employer decided differently).
Employers should always begin a response to a disciplinary appeal process by reminding themselves of their own disciplinary policy and the ACAS Code of Practice on disciplinary and grievance procedures. If you haven’t already got your own disciplinary policy, subscribers to Wrigleys HR Response service have access to a template policy, if one is needed.
We consider below the key points an employer should bear in mind when handling appeals.
1. Appoint an appeal hearing manager
The disciplinary hearing manager should set out that the employee has a right to appeal as part of the decision / outcome letter and who the employee needs to appeal to. Some employers will set out in their disciplinary policies who an appeal hearing manager is, but in all cases the ideal appeal manager will be at least as senior as the hearing manager.
For some organisations this might mean an appeal manager is someone very senior – this might be a Managing Director, CEO, Trustee or board member for example.
|
Problem areas 1 – finding the right appeal manager By the time a disciplinary gets to appeal stage some employers struggle to find someone to oversee the appeal. This is because in an ideal world the appeal manager would be someone who was not involved in the disciplinary matter to date and who knows nothing of the allegations or people involved. This can be quite hard to achieve for many small and medium-sized employers. Whilst the law – and employment tribunals – recognises that smaller organisations are limited by resources, depending on the seriousness of the allegations and nature of appeal, it is worth an employer considering seeking outside help to handle aspects of the disciplinary which may include the appeal. This may be particularly relevant where the employee who is appealing the sanction is themselves senior and is arguing that the decision or sanction was unfair because of bias and they raise concerns that any appeal manager will also be biased.
|
Ideally, the grounds of an appeal will be clearly set out by the employee in writing, detailing the ‘what’ and ‘why’ of the appeal. However, it is common that employees submit a simple note saying only that they appeal the decision.
Where this happens an appeal manager should consider getting in touch with the employee to meet and discuss in detail what the points of appeal are. This may involve a meeting with a notetaker or alternatively the appeal manager writing to the employee to ask for more details of the appeal.
|
Problem areas 2 – late appeals Employees may not appeal within the timeframe set out for the appeal to be submitted. This may be because they have been sick or diverted by personal issues, for example. If an employee is late by a few days it is worth considering accepting the appeal in any event to demonstrate an organisation’s reasonableness and to seek to resolve the matter internally to reduce the likelihood of a claim in the employment tribunal. There is ultimately no hard rule with late appeals. Whilst it is considered best practice to accept appeals that may be late due to good reason, employers are able to take the view that if an appeal is late without good reason, it will not be automatically accepted.
|
2. Prepare for the appeal hearing and invite the employee to attend
Please see the sections of Part 2 of this guide for an outline of how to prepare for a disciplinary hearing - this applies to appeals as well.
Provided the grounds of appeal are clear (which may require a meeting with the employee or written grounds from them), the appeal manager should also consider whether what is needed is a review in detail of the allegations and evidence or if the appeal is more limited to the decision and outcome.
Appeals are not generally meant to be used to re-examine the allegations and evidence, but this may be felt necessary if significant concerns with the evidence or process are raised. Appeals may be an opportunity for employers to revisit flawed disciplinary procedures and correct errors – this may or may not result in a different outcome.
The appeal manager should also consider what the potential outcomes of the appeal are. Decisions may be upheld, rescinded or altered and that may lead to sanctions being confirmed, removed or altered.
In all cases, the appeal manager’s decision will be final.
As with disciplinary hearings, an employee is entitled to be accompanied to an appeal hearing by a trade union representative or colleague. An employee may ask for a close family member of friend to accompany them and, as we considered in Part 2 of this guide, appeal managers should consider if this is reasonable in the circumstances (for example, if the employee could use the support to engage with the appeal due to a disability or simply that they need moral support).
All the above points should be set out in an invitation to an appeal hearing, clearly setting out the place, date and time of the meeting and who will attend. It is recommended that a note taker is present to help keep track of the points raised at the meeting as it can be difficult for a manager to do this and effectively chair an appeal.
All relevant documents to the hearing should be enclosed along with the invite.
Subscribers to our Wrigleys HR Response service have access to a template invitation to an appeal letter, if one is needed.
3. Conduct the appeal hearing
Appeal hearings should be conducted in the same manner as a disciplinary hearing. Please see Part 2 of this guide for more details.
After the manager has opened the meeting, introduced the parties, explained what the meeting is for and clarified the employee has read all the documents, each ground of appeal should be discussed, and the relevant points considered.
At appeal stage the onus is on the employee to make the points they want to be considered, but the appeal manager should ask questions if they are unclear on any points raised or if they want to confirm what the employee accepts and does not accept from the disciplinary hearing.
It is not uncommon for points to be made at appeal that require further investigation from the appeal manager. This may mean that the appeal hearing is adjourned to allow further investigation to take place before arriving at a decision.
4. Assess the appeal and make a decision
Once the allegations and evidence have been discussed, and the employee has been given the opportunity to make all the points they wish to present, the manager needs to consider all the evidence and points presented and determine an outcome.
It is more common for appeal managers to close an appeal meeting and provide the outcome in writing, but it is possible to give a decision to the employee on the day, even if the manager needs to ask the employee to leave the room whilst they decide the outcome.
If the manager decides to close the meeting, they should indicate how long it will take for the decision to be communicated. Managers should check the disciplinary policy and the ACAS Code of Practice on disciplinary and grievance procedures for guidance on this, but in any case it should take no longer than reasonably needed.
5. Deliver the outcome to the employee
The outcome can be delivered to the employee in person, or over the phone but in all cases a written outcome must be provided to the employee clearly setting out whether each ground of appeal was upheld or not upheld with reference to the key evidence leading to the decision, and what actions will follow those decisions.
Appeal managers should carefully consider what actions result from their decisions. Because original decisions made at disciplinary hearing level may be overturned or altered and sanctions can be altered, there may be several potential outcomes to consider.
The key, as always, is to take a fair and common-sense approach. If a point on appeal is upheld that requires a change to the disciplinary sanction applied, then this must follow. This need not mean the employee is exonerated of wrongdoing and may mean that a range of alternative sanctions needs to be considered before being applied.
As with a disciplinary hearing outcome, any sanctions process – such as considering mitigating factors – will need to be followed by reference to any guidance provided by the disciplinary policy and employer precedent on similar matters when substituting or altering a sanction.
Subscribers to our Wrigleys HR Response service have access to a template appeal outcome letter, if one is needed.
Where an employee was dismissed and the decision to dismiss is overturned at appeal the appeal manager will need to ensure that internal HR and other relevant positions within the organisation (such as the employee’s line manager) know of the outcome and to organise for the employee’s return to work.
Dismissed employees may not have received any pay at all following dismissal and so it is important that steps are taken to organise back pay for an employee who is reinstated.
Part 4 of our Essential Employment Guide to Disciplinaries will set out a useful disciplinary toolkit for employers.
|
If you would like to discuss any aspect of this article further, please contact Michael Crowther or any of the employment team on 0113 244 6100. You can also keep up to date by following Wrigleys solicitors on X. The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors. |
