How very appealing – practical tips for conducting appeals

The Court of Appeal has recently published its judgment in Adeshina v St George's University Hospitals NHS Foundation Trust. The facts are interesting, though fairly case specific (the Court found that, on the facts, the employee's poor attitude to organisational change had amounted to gross misconduct and a repudiatory breach of contract).

What is useful about this case though, is that the EAT's decision - that employers can rectify serious procedural defects on appeal - was not challenged and so remains good law. We did a blog piece on this decision at the time, which sets out the background and a useful analysis of the judgment. However, this feels a good time to provide some practical tips about conducting appeal hearings:

1. Employees should always be given the right to appeal a disciplinary sanction (and indeed a grievance decision). Best practice is to advise the employee of this right in writing, stating the deadline by which to appeal.
2. Employees have the right to be accompanied to appeal hearings, which should be arranged without unreasonable delay. Employees should be informed of the potential outcomes of the appeal.
3. Ideally, thought should be given at an early stage to who should hear the appeal, so that the person can be kept independent from the disciplinary process. In so far as possible, the person should be:

• impartial and not have had previous involvement in the case (general prior dealings with an employee should not render the decision unfair provided there is nothing else which suggests bias); and

• more senior than the person who imposed the initial disciplinary sanction (or certainly not junior to them).

As happened in Adeshina, the use of an appeal panel may give an employer slightly more latitude on these points.

4. At one end of the spectrum, appeals may take the form of an appeal officer looking at the original decision and deciding whether it is reasonable based on the evidence (known as a review); at the other end, it can effectively be a repeat of the original hearing (known as a rehearing).

Unless there is a requirement under an employer's disciplinary policy to categorise an appeal as a review or rehearing, the courts have indicated that it is unlikely to be necessary to do so (since the distinction is not always clear).

5. If new evidence comes to light during the course of an appeal, this should be considered as part of the appeal and the employee should have the chance to comment on it before a decision is made.

New evidence can be taken into account to justify a dismissal, even if the evidence at the initial disciplinary hearing would not have justified it. Conversely, a decision which was justified at an initial disciplinary hearing may be rendered unfair if new evidence at the appeal shows it cannot be sustained.

6. As Adeshina shows, it is possible for even serious procedural defects in a disciplinary process to be rectified at an appeal. Appeals can therefore be an invaluable tool for saving potentially unfair dismissals. In order to do this, the appeal must be as comprehensive as possible and so it is advisable to carry out a rehearing of the original decision (e.g. re-interviewing the employee and potentially witnesses to come to a fresh decision).

7. Employers cannot increase disciplinary sanctions on appeal unless a contractual disciplinary policy expressly permits them to do so.