Your right to appeal – a guide
What is the right to appeal?
The Acas code gives employees the statutory right to appeal disciplinary and grievance decisions made by their employer which they consider to be wrong and/or unfair (click on this link to read the ACAS Code of Practice on Grievance and Disciplinary Procedures).
Do I have the right to appeal my dismissal?
Yes. The Acas code states that it applies to dismissing an employee for conduct or performance issues, but not to dismissals because of redundancy (see below for advice on redundancy dismissals).
On what grounds can I appeal a disciplinary decision?
The reasons for an employee appealing a disciplinary decision will vary according to their particular circumstances, but some examples of grounds of appeal include:
- Original decision maker was biased
- New evidence has come to light
- Disciplinary sanction was too severe a punishment
- Similar misconduct by other employees had been dealt with differently
- Failure by employer to follow its own disciplinary process
How should my employer deal with my appeal?
The Acas code recommends that:
- Your employer allows you 5 working days to lodge an appeal against any outcome;
- Once your employer has received your appeal, the Acas code states that the appeal should be heard without unreasonable delay and at an agreed time or place;
- Your employer should also comply with any appeal requirements set out in any internal policies (so check your contract of employment or the staff handbook to make sure your employer is complying with those in addition to the Acas code)
Impartiality and fairness
The person hearing your appeal should be impartial and should not have been involved in the process which led to the original disciplinary decision. They should also be outside of the reporting line of the person who conducted the disciplinary hearing to avoid allegations of bias (that they simply supported their subordinate’s decision) and should be more senior than the manager that made the original decision where possible. For smaller employers where this is not possible, the employer should consider whether the owner of the business (or the board of trustees if it’s a charity) should hear the appeal. They should be provided with all of the evidence compiled during the investigation and copies of the notes from the disciplinary hearing. However, they should not speak with the original decision maker as this could impact on their impartiality.
Should the hearing be a review of the original decision or a ‘re-hearing’?
Whether to not the appeal hearing should be a review of the original decision and evidence or a full rehearing will very much depend on the facts and an employment tribunal will consider whether the disciplinary process as a whole was fair when deciding whether or not an employee was unfairly dismissed where an employee has been dismissed. However, where there has been procedural defects in the initial disciplinary hearing these are more likely to be remedied where the appeal is sufficiently comprehensive (e.g. is not simply a review of the original decision).
The manager conducting the appeal should have access to all of evidence collated during the investigation and the notes of the disciplinary hearing, but should not confer with the original decision maker in case this leads to a biased view of the case against the employee.
Should I submit a tactical appeal against my dismissal?
Possibly. By submitting an appeal, you will be adding weight to any future employment tribunal claim if you can show that you did everything possible to resolve your dispute with your employer prior to making an claim. If your preference is to try and achieve a settlement of potential employment tribunal claims without issuing a claim in the employment tribunal, it also might make sense – this is because dealing with appeals can use up a lot of senior management’s time and employers may be more inclined to settle an employee’s claims if it means they will avoid having to deal with an appeal by doing so.
The danger in submitting an appeal is that if your complaint is upheld and your employer tries to remedy the situation – this could reduce your chances of winning a future employment tribunal claim as the substance of that claim could fall away. In our experience though, appeals are rarely upheld (see below).
Can an employer punish me by increasing the disciplinary sanction because I have appealed?
No, but if fresh evidence comes to light during an appeal process, an employer can commence new disciplinary action against an employee in respect of that evidence.
Do I have to attend an appeal hearing?
If you cannot attend an appeal hearing for some reason (e.g. sickness), you can ask for it to be delayed until you are feeling better or you can ask your employer to conduct the hearing in writing. If this happens, you would lose the ability to question your employer in the same way as you would at an appeal hearing. However, which approach works best for you (whether to have the hearing ‘in person’, over the telephone, or conducted in writing) will very much depend upon your particular circumstances and what you want.
Do I have to appeal the decision to dismiss me before I can bring a claim the Employment Tribunal for Unfair Dismissal?
No, you do not by law have to appeal the decision to dismiss you before you bring a claim to the Employment Tribunal for unfair dismissal. However, a failure to appeal the decision to dismiss you could lead to a reduction in any award made by the employment tribunal (by up to 25%) – the employment tribunal has the power to reduce any award by this amount if it finds you have unreasonably not followed the appeals process.
An example of when it might be reasonable not to use an internal appeal process would be where the person due to hear the appeal was instrumental in the decision to dismiss originally.
Do I have the right to appeal the outcome of my grievance?
Yes. The Acas code provides for a statutory right to appeal the outcome of a grievance,
Should I appeal against the outcome of my grievance?
If you want to remain an employee and genuinely want the issue to be resolved internally by your employer, it makes sense to appeal the outcome of a grievance if it is not upheld.
However, you might feel that the trust and confidence in your employer has broken down to such an extent it makes more sense to simply resign. You can then consider bringing a claim for constructive unfair dismissal alongside an employment tribunal claim or claims in respect of the issue or issues complained about in your original grievance.
What process should my employer follow in dealing with my appeal against the outcome of my grievance?
Once an employer has received your appeal in writing it should investigate it and invite you to a meeting to discuss your appeal. Once they have heard your appeal, your employer should confirm the grievance appeal decision in writing as soon as possible – a failure to provide a fair and impartial appeal could lead to a constructive unfair dismissal claim if it constitutes a breach of the implied term of trust and confidence.
Do I have to appeal the outcome of my grievance prior to making a claim in the Employment Tribunal?
No, but a failure to do so could lead to a reduction in any award made by the employment tribunal by up to 25%.
Do I have the right to be accompanied at an appeal hearing?
Yes. Employees have the same right to be accompanied at an appeal hearing as they do for a disciplinary or grievance hearing. They are allowed to be accompanied by a work colleague, trade union representative or trade union official.
Can I appeal the decision to make me redundant?
There is no statutory right to appeal a redundancy – the Acas Code does state that employers should be encouraged to offer an appeal in a redundancy situation, but this has no legal status. However, your employer may allow you to appeal the decision to make you redundant – we therefore recommend that you:
- check your contract of employment and any internal policies governing redundancies to see whether you can appeal; and
- contact your employer to submit an appeal against your redundancy
Why might my employer not want to allow me to appeal against my redundancy?
Your employer may be reluctant to allow you to appeal the decision to make you redundant if it is making other employees redundant at the same time. This is because if your appeal was upheld it could provide evidence of unfairness in respect of the decision to make other employees redundant.
However, where your complaint is about procedural flaws in the redundancy process (as opposed to a complaint about the genuineness of the actual redundancy situation) an employer may uphold an appeal and then go on to ‘cure’ the procedural defects in the initial consultation period complained about. This is advantageous to the employer as any unfair dismissal claim based on those procedural flaws could then fall away.
What are my chances with an appeal?
In our experience appeals are rarely upheld, especially when an employer has spent a lot of time and resources in coming to the original decision. It is therefore worth considering carefully whether it makes sense appealing and we can help advise on this.
Are there time limits for bringing an appeal?
Check your employment contract or your employers’ internal policies to see whether they impose a time limit on you for lodging an appeal. 5 working days from the date of termination of your employment is usual for an appeal against a dismissal and an employer who tries to impose a shorter limit might be criticised down the line by an employment tribunal if it insists an employee complies with it.