Appeals Against Disciplinary Action

Appeals Against Disciplinary Action. The statutory ACAS code of practice on disciplinary and grievance procedures provides practical guidance on handling disciplinary and grievance situations in the workplace, and includes recommendations about appeals against disciplinary penalties. Failing to provide a right of appeal would amount to a breach of the ACAS code and could result in a finding of unfair dismissal.

While there is no statutory duty for employers to provide employees with the right of appeal against a disciplinary penalty, it is an important part of a fair disciplinary procedure. A failure to provide the right of appeal would amount to a breach of the ACAS code and could result in a finding of unfair dismissal. The right should exist where any formal action is taken.

ACAS Code of Practice and Appeals Against Disciplinary Action

The ACAS code of practice on disciplinary and grievance procedures is not legally binding, so employers will not face an automatically unfair dismissal claim if they fail to follow its recommendations. However, employment tribunals take the code into account in considering the fairness of procedure in relevant cases, and are able to adjust any awards made by up to 25% for unreasonable failure to comply with any of its provisions. This adjustment can be up or down, depending on which party is at fault.

The code states that employers should allow employees to appeal against any formal disciplinary decisions made. The code advises that appeals should be heard without unreasonable delay, and ideally by a manager not previously involved in the case. The employer should inform the employee in writing of the results of the appeal hearing as soon as possible.

It follows that, when notifying an employee of a disciplinary decision, the employer should inform the employee of the right of appeal if he or she is dissatisfied with the decision. If the employee wishes to appeal, he or she should notify the employer in writing, setting out the grounds for the appeal. The employee will have the statutory right to be accompanied at the appeal hearing by a trade union official or fellow worker of his or her choice.

Contractual Appeals Processes

Where your disciplinary policy forms part of the contract of employment and the policy provides for a right of appeal and this is not given to an employee, this will be a breach of contract. Employers should also bear in mind that aspects of a disciplinary policy may become contractual by reason of custom and practice if their employees have a reasonable expectation that they will be given a right of appeal and this is the process that is invariably followed. Some employers may have more than one appeal stage provided for under their contractual procedure, although this is unusual.

Consistency of Treatment

It is important for employers to ensure consistency of treatment in offering a right of appeal to avoid the risk of a discrimination claim. For example, if one employee is given a final written warning but is not given a right of appeal, and can point to a situation where an employee of a different racial group received the same level of warning but was given a right of appeal, there is the risk that a claim for race discrimination will result.

There should also be consistency in the way that the employer deals with appeals, for example by ensuring that the appeal is heard before a panel, or by a manager who is more senior than the person who conducted the original hearing, if this has been the employer’s practice in the past.

Best Practice for Appeals Against Disciplinary Action

The non-statutory guidance accompanying the code says that, wherever possible, the person who hears the appeal should be someone senior in authority to the person who took the disciplinary decision. In small companies, if a more senior manager cannot be found, a different manager of equivalent level should be asked to hear the appeal. If there is no alternative but for the manager who heard the original disciplinary hearing to hear the appeal, he or she should act as impartially as possible when hearing it.

A time period should be set for the employee to exercise their right of appeal. The ACAS guide suggests that five working days is usually enough. However, the employer should reserve discretion to consider later appeals depending on the circumstances of the case.

In terms of paperwork, a record or any notes of the original disciplinary hearing should be made available to both the employee and the person hearing the appeal. Each side should also let the other know if it intends to rely on any other documents and provide copies in good time before the hearing.

Following the appeal hearing, the manager should notify the employee of the outcome of the appeal. The ACAS code of practice recommends that this should be done in writing as soon as possible after the appeal hearing. If there is no further appeal stage, the employer should also make it clear that the decision is final, and that there is no further right of appeal.

Grounds For Appeals Against Disciplinary Action

The opportunity to appeal against a disciplinary decision is essential to natural justice.

The hearing, where possible, should only examine the grounds of appeal that the employee raises – not re-hear the case. The appellant must therefore be clear and specific about the grounds for appeal.

Normally, appeals can be raised on one or more of the following grounds:

  • The procedure: a failure to follow procedure had a material effect on the decision.
  • The facts of the case: the evidence did not support the conclusion of the hearing officer.
  • The sanction: too severe given the circumstances of the case.

The employee may support any appeal made on the above grounds by bringing new evidence. Such evidence should not have been available at the original hearing. The appeal should not be used to reargue the case with different (rather than new) evidence.

The grounds of appeal need to be considered when deciding the extent of any appeal hearing (or investigation if there is new evidence).

The appeal panel should be able to consider presentations from both sides that relate only to the grounds of appeal. In some cases, however, the panel may decide that justice is best served by a complete rehearing of the case. The parties to the appeal must be told clearly when the appeal is to take the form of a rehearing.

Ask yourself:

  • Are the grounds of appeal detailed enough to form the case statement for the appeal hearing?
  • Is it necessary to clarify the grounds with the employee before the hearing?
  • Are any of the facts of the case in dispute?
  • Is it best to restrict the hearing to consideration of the grounds of appeal, or is natural justice best served by allowing a complete rehearing of the case?

The Right To Be Accompanied

Under s.10 of the Employment Relations Act 1999, workers have the statutory right to be accompanied at a disciplinary hearing by a fellow worker or trade union official of their choice and this includes an appeal hearing. The right applies where the appeal is against a disciplinary warning as well as where it is against dismissal. Where the chosen companion is a trade union official it is not necessary for the employer to recognise the trade union in question.

Where the employee’s chosen companion is not available on the proposed hearing date, and the employee proposes another date that falls within five working days of the original date, the employer must rearrange the meeting accordingly.

Read more about the The Statutory Right To Be Accompanied.

Conducting The Appeal Hearing

The appeal manager should begin the meeting by introducing everyone who is present and explaining their role. They should explain that the purpose of the meeting is to address the specific points that the employee has raised in their appeal, and to reach an independent decision on whether to uphold the finding of the disciplinary hearing, to overturn that decision or to substitute a lesser penalty.

General rules of fairness and natural justice should apply to the appeal hearing. The employee should have an opportunity to explain why they think that the original decision was wrong. This might be because the employee considers that the penalty was too harsh; new evidence has come to light; or the employee wishes to complain that the procedure was not fairly or correctly applied at the original hearing. If the employee has chosen to be represented, the companion should be allowed to put their case, sum up the case and respond to any view expressed at the hearing. The companion is not, however, entitled to answer questions on the employee’s behalf.

The employee should have the chance to put any new evidence to the employer. If the employee brings to the appeal hearing new issues that were not brought before the original disciplinary hearing, it will be necessary for the employer to consider the nature of these issues and why they were not originally raised. If the employee wishes to introduce completely new evidence that is relevant and was not considered previously, it may be necessary for the manager to adjourn the appeal hearing so that the new matters can be investigated.

Once the relevant issues have been thoroughly explored, the manager should summarise the facts and adjourn to consider the decision.

The ACAS Code recommends that the manager hearing the appeal should be prepared to change the initial decision if it becomes apparent that the basis for it was not sound. It advises that, rather than undermining authority, such action makes the independent nature of the appeal apparent.

While there is no statutory bar on imposing a higher penalty as a result of an appeal, the ACAS Code states that an appeal should not result in any increase in penalty as this could deter employees from appealing.

Once the decision is made the Appeal Hearing Manager should reconvene the hearing and inform the employee of the decision and confirm that the decision will be sent to them in writing in the next few days.

Reinstating the Employee

If the original decision was to dismiss the employee, but this is overturned as a result of an appeal, the employer should reinstate the employee with immediate effect. The employer could choose to impose a lesser penalty in place of the original decision to dismiss, provided that the disciplinary policy does not restrict this.

There should be no break in the employee’s continuity of service, and the employee should be paid for the period between the dismissal and reinstatement (taking into account any notice payment they received).

Record-Keeping

It is advisable for an employer to keep records of whether or not an appeal was lodged and the outcome of any appeal. It is also helpful for it to take notes at the appeal hearing itself.

These records will be subject to normal data protection rules. This means data collected as part of the appeal hearing stage should be held securely and accessed by, and disclosed to, individuals only for the purposes of completing the hearing. Inappropriate access or disclosure of employee data constitutes a data breach and should be reported in accordance with the organisation’s data protection policy immediately. It may also constitute a disciplinary offence.

Top Tips

  • Apply the right of appeal consistently so as to avoid the risk of discrimination claims.
  • Appreciate that employment tribunals take the ACAS code of practice on disciplinary and grievance procedures – which includes recommendations about appeals against disciplinary penalties – into account when considering relevant cases.
  • Be aware that the ACAS code states that employees should be given the opportunity to appeal against disciplinary decisions, that the appeal should be heard without unreasonable delay, and that the employer should inform the employee in writing of the outcome as soon as possible.
  • Aim to have the appeal heard by a manager who is more senior than the one who dealt with the original disciplinary hearing.
  • Be aware that workers have the statutory right to be accompanied at a disciplinary appeal hearing by a trade union official or fellow worker of their choice.
  • Where the employee fails to attend the appeal hearing, investigate the reasons for this and rearrange the appeal hearing where appropriate.
  • Ensure that the general rules of fairness and natural justice are applied to the appeal hearing.
  • Keep records of the appeal.

If you have any questions, please call me on 0114 360 0626 or simply email me at enquiries@kea-hr.co.uk.

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Appeals Against Disciplinary Action