“I am a small employer and have had to make someone redundant when they returned from furlough. I have already told him he is dismissed, but now he is saying he wants to appeal. I don’t think I will change my mind. What should I do?”
The right of appeal is a very important part of employment law. In considering whether you have to offer an employee a right of appeal against a decision it really depends on a number of factors, including the decision from which they are appealing and their length of service.
The first thing to say however is that the right of appeal shouldn’t always be viewed as a problem. A well-run appeal can rectify problems in the original decision, so it is often advisable and best practice to offer an appeal. The ACAS Code of Practice on disciplinary and grievance procedures (available on the ACAS website) gives guidance which is taken into account by Tribunals. The Code is essential reading.
In the above scenario of course, an employer should always try to offer an appeal to another officer or manager of the company, who was not involved in the original decision. Ideally of course they should be more senior than the person who exercised the previous decision and have the right to overturn it if they think it was wrong.
A failure to offer a right of appeal, particularly in a dismissal, will often render a dismissal unfair (provided, that is, the employee qualifies for the right to bring an unfair dismissal claim). Where there are contractual rights to appeal in the employee’s contract or in the handbook, then it is also the case that an employer’s failure to follow their own procedures is more likely to render any decision unfair and, furthermore, can also give rise to a separate claim for breach of contract.
Tribunals are bound to take into account the size and administrative resources of the employer when looking at how well an appeal is run. There is case law to the effect that an appeal process does not have to be perfect and the smaller the employer, the more a Tribunal should exercise some discretion or leeway when examining the processes followed.
The Court of Appeal (Gwynedd Council v Barratt and another) has recently confirmed that in a redundancy situation the absence of an appeal will not of itself be fatal to an employer proving a fair dismissal to a Tribunal. An appeal is just one of other factors to consider when a Tribunal consider unfair dismissal on the grounds of redundancy in determining fairness.
That said, as an employer you should wherever possible try to offer the right of appeal. There are some circumstances with short serving employees under 2 years’ service where this could be questioned, but in such circumstances, you should always seek legal advice.
MILS Legal Ltd t/a MILS
MILS Legal Ltd t/a MILS provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.