The Importance of the Internal Appeal Procedure

When an employee’s employment is terminated they have the right to appeal against the decision that has been made, and there is guidance in the ACAS code of practice as to the handling of appeals.

It is extremely important to ensure that when terminating employment you get the procedure right and internal appeals can be crucial when it comes to procedural defects in the earlier procedure, as illustrated by this recent Employment Appeal Tribunal case.

Biggin Hill Airport Ltd v Derwich

The Law

In order for a dismissal to be fair employers must have a potentially fair reason to dismiss and must follow a fair procedure in making the decision to dismiss.

This means that even if there is a fair reason the Employment Tribunal could decide that the dismissal is unfair on procedural grounds.

Case law has determined that in deciding the fairness question the Employment Tribunal must consider both the original dismissal decision and any subsequent appeal.

The Facts

In this case Miss Derwich was employed as a Handling Agent at Biggin Hll Airport (the ‘Employer’) and had been employed since July 2008.

In October 2013 the Employer decided to increase the number of Supervisors at the airport and Miss Derwich’s friend and colleague Ms King applied and was given the job.

Prior to taking up the post of Supervisor Ms King ‘unfriended’ Miss Derwich and colleagues on Facebook. This apparently upset Miss Derwich and others and they began giving Ms King the cold-shoulder and made a complaint about her appointment as Supervisor.

The Employer became aware of the treatment Ms King was receiving from colleagues and investigated allegations that, in particular, ‘Witch’ image had been saved to her computer.

In the course of the investigation it came to light that Miss Derwich and a couple of  others had made a Google images search using the terms “Witch”, “middle finger”, “one finger death punch”, and other more offensive terms.

Miss Derwich was suspended and interviewed as part of the investigation. She admitted choosing the witch image and did not deny other behaviour alleged.

A disciplinary hearing took place on the 10th January 2014 led by Mr Mellers. Following the hearing Mr Mellers made further enquiries with other staff members but did not disclose these details to Miss Derwich before she was dismissed on the 16th January 2014 for gross misconduct.

Miss Derwich then appealed and a hearing was held by Mr Lonergan. Before the appeal hearing Mr Lonergan sent Miss Derwich all of the witness evidence that had been obtained and therefore before the appeal hearing she had details of all evidence and of the three allegations against her.

Mr Lonergan did not uphold Miss Derwich’s appeal and so she made a claim to the Ashford Employment Tribunal for unfair dismissal.

At the Employment Tribunal the Judge decided that the dismissal was unfair and in particular noted concerns about the disciplinary process including:

“The “charges” alleged against the Claimant in the letter of the 6 January 2014, save in respect of the “Witch” image, were not specific.  They were referred to as matters that had been discussed, but did not identify precisely what it was alleged the Claimant had done or omitted to do.

Similarly, no reference was made to “gross misconduct” or the terms of the disciplinary procedure relied on for such a charge.

The Claimant was not provided in advance of the hearing with copies of the various interviews or other documents relied on by the Respondent.

The Claimant had little time to prepare her case and, in the absence of copies of the relevant evidence, no opportunity to prepare evidence in rebuttal.

 Mr Mellers carried out further investigations following the hearing of which the Claimant had no notice or knowledge or opportunity to rebut.”

The Employer appealed against the decision to the Employment Appeal Tribunal.

The Decision

The Employment Appeal Tribunal examined the decision of the Tribunal and concluded that the Judge had failed to deal with the effect of  the appeal hearing in dealing with the procedural defects of the original disciplinary.

The Employment Appeal Tribunal noted that

“(1) even if the charges were not made plain to the Claimant before Mr Mellers’ hearing, she was well aware of them by the time of the appeal before Mr Lonergan because they were clearly articulated in the dismissal letter from Mr Mellers.

(2) The suspension letter of 6 January contained a copy of the disciplinary procedure, which included offences said to amount to gross misconduct.

(3) All notes of interview including those not provided before the Mellers hearing were provided to the Claimant some six days before the appeal hearing.

(4) By the time of that appeal hearing the Claimant had had sufficient time to prepare her case, the Respondent would argue. And

(5) the Claimant had full knowledge of Mr Mellers’ further investigations by the time of the appeal.”

The Employment Appeal Tribunal therefore decided to return the case to the Employment Tribunal for consideration again by a different Employment Judge.

Points to note

This is an interesting decision and shows that where employers get the procedure wrong in the first instance at the disciplinary stage, it can be cured by following a full and correct procedure at the appeal.

The reasons for the finding of unfair dismissal in the first case were due to the failures of the employer to follow the correct procedure, however the employee had a full opportunity to state her case and for the decision to be considered fully and fairly at the subsequent appeal.

What action do you need to take?

1. Make sure you have a good, easy to understand disciplinary policy;
2. Familiarise yourself with the ACAS Code of Practice;
3. Ensure that anyone who is involved in disciplinary issues, either investigating, hearing a disciplinary or dealing with the appeal are trained on the correct procedures and have support throughout from a trained professional;
4. If you find yourself with a disciplinary issue such as this contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email alison@realemeploymentlawadvice.co.uk

Case Name

Biggin Hill Airport Limited v Derwich – Employment Appeal Tribunal