Whilst employees’ do not have a statutory right to
appeal a disciplinary decision, the Acas code of practice on disciplinary
and grievance procedures advises that individuals should have the right
to appeal if formal action is taken. Giving employees the right to appeal
is an important part of a fair disciplinary procedure and it is advisable
that employers make this clear in their Disciplinary Policy.
It is also important that employers follow their appeals procedure as it
forms part of an individual’s contract of employment, and failure to
comply with it would be considered a breach of contract. Furthermore,
employers need to ensure they are applying the appeals process
consistently to all employees who are subject to disciplinary action to
avoid any potential discrimination claims.
The Acas code of practice advises that appeals should be heard without
unreasonable delay. Employees are usually given a timescale to submit
their appeal in writing, advising the employer of the grounds for their
appeal. The appeal should be handled by someone who is impartial and was
not involved with the original disciplinary where possible, and the
appeal manager should be someone who is more senior than the person who
dealt with the disciplinary hearing.
As with the disciplinary hearing, employees have a statutory right to be
accompanied at an appeal hearing. This would usually be by another
employee or a trade union representative; however employers should give
consideration to what they deem to be a ‘reasonable’ request by an
employee.
If for any reason the employee fails to attend the appeal hearing as
agreed, then the employer should investigate what the reasons were for
this and rearrange where appropriate. It is important that the date of
the appeal hearing is mutually agreed and that employers seek advise from
their Occupational Health provider as to whether an employee who is
absent from work due to illness is fit to attend.
If during the appeal hearing the employee brings something to the
attention of the appeal manager that the organisation wasn’t aware of
during the original investigation process, then the appeal should be
postponed until this additional information can be reviewed.
With regards to the outcome of the appeal, it is important
that the
appeal manager is aware that a disciplinary sanction cannot be increased
as a result of an appeal hearing. In the event that the decision is taken
to uphold the appeal then organisations must consider what happens to an
employee’s continuity of service if they are dismissed but reinstated on
appeal.