Why Appeals Matter – Lessons from UK Employment Law

Appeals Advice For Employers

A robust appeal process is not just a procedural “add-on” to disciplinary or dismissal decisions it is a critical component of fairness under UK employment law.

Case law and tribunal decisions continue to reinforce that appeals can be a key factor in determining the overall fairness of a dismissal.

Why appeals are so important

Under the ACAS Code of Practice, employees should be given the right to appeal disciplinary decisions, including dismissal. This is because an appeal serves as a review mechanism, allowing employers to reconsider decisions and correct any flaws in the original process.

Tribunals will assess the entire process, including the appeal stage, when determining fairness. This means a well-run appeal can sometimes “fix” earlier procedural defects; however, equally, a poor appeal can undermine an otherwise reasonable decision.

Importantly, where an employer unreasonably fails to follow the ACAS Code, a tribunal may increase any compensation awarded by up to 25%. This makes compliance not only a matter of fairness, but also of financial risk.

Key legal principles and case law insights

1. Appeals can “fix” earlier procedural issues

Deficiencies in the initial disciplinary process may be remedied at appeal, provided the appeal is thorough, impartial, and demonstrates genuine reconsideration of the issues. The principle is reflected in case law confirming that fairness must be assessed “in the round”, taking into account the appeal stage as part of the overall process.

2. A flawed appeal can undermine an otherwise fair dismissal

Even where there are strong substantive grounds for dismissal, a failure to conduct a fair and reasonable appeal can render the overall dismissal unfair. This applies even where the likely outcome, had a proper process been followed, would still have been dismissal.

This approach is illustrated in Milrine v DHL Supply Chain Ltd , where the EAT found that the dismissal was unfair not because the underlying capability concerns were necessarily unfounded, but because the employer’s handling of the appeal process was defective. The case reinforces that the appeal stage forms a central part of the fairness assessment, and procedural flaws at this stage can undermine an otherwise potentially fair dismissal.

3. A genuine appeal must not be predetermined

Tribunals are highly alert to arguments that an outcome was pre-decided. While employers can form provisional views, the appeal must demonstrate:

• Independent consideration.
• Engagement with the employee’s representations.
• A willingness to overturn the original decision if appropriate.

Failing to do so risks findings of unfair dismissal, particularly where the appeal outcome appears dismissive or prescribed.

4. Appeals are usually essential but not always decisive

While offering an appeal is a key element of fairness, case law confirms that the absence of an appeal will not automatically render a dismissal unfair. For example, in Moore v Phoenix Product Development Ltd , it was recognised that fairness depends on the overall circumstances.

However, employers should treat this as a narrow exception. Failing to offer or properly conduct an appeal will often weigh heavily against them.

5. The appeal can legally “erase” a dismissal

A successful appeal can, in some cases, overturn a dismissal entirely, with employment treated as continuous. This underlines the legal significance of the appeal stage.

6. Appeals are the “last chance” internally

The appeal is effectively the employee’s final opportunity to challenge both the decision and the process before external claims are pursued. It is also the employer’s final opportunity to ensure the process withstands scrutiny.

Practical lessons for employers and managers

To ensure your appeal process stands up to scrutiny:

• Treat the appeal as a genuine rehearing or review, not a rubber-stamping exercise.
• Ensure independence where possible.
• Engage with all grounds of appeal clearly and specifically.
• Remain open-minded, even where the original decision appears strong.
• Document reasoning clearly and consistently.

A well-handled appeal can significantly strengthen the employer’s position. A poorly handled one can undermine an otherwise sound decision.

Employers sometimes view appeals as a formality, particularly where they believe the outcome is unlikely to change. However, UK employment law consistently demonstrates that the appeal stage is integral to overall fairness.

Handled properly, it is the employer’s second chance to get the process right. Handled poorly, it can be the reason a dismissal is found unfair and can increase liability through compensation uplifts of up to 25% for non-compliance with the ACAS Code.

If you would like support reviewing your disciplinary or appeal procedures, please do not hesitate to contact a member of our team.