Often a small employer faces the dilemma that having investigated an issue of misconduct and carried out a disciplinary hearing, there is no senior manager who was not previously involved in the case available to deal with any appeal. The employer will be concerned that a dismissal will be unfair if it cannot provide an independent appeal process. Equally, the employer is loath to lose control of the process and have someone outside the organisation hear the appeal when they do not understand the culture and standards of the employer and the personalities involved.
The employer’s worst nightmare is to find its decision to dismiss overturned by a third party. This is what had happened in a recent Employment Appeal Court (EAT) case, in which the Tribunal allowed the employer’s decision to ignore the successful appeal and proceed to a dismissal. The dismissal was nonetheless fair in all the circumstances which included:
The employer is a nursery whose first concern was for the children in its care.
The appeal panel were only asked to review the decision made, and did not have authority to bind the nursery with its decisions.
Further information came to light as a result of the appeal process which was later investigated.
In the particular circumstances, it was not unreasonable for the nursery not to follow the decision of the review panel, and the failure to do so did not of itself render the process unfair. In fact the EAT helpfully confirmed that the nursery would not necessarily have been in breach of the Acas Code if the nursery had decided that it should deal with the appeal internally even without an independent manager. A judge always has to take into account the size and resources of the employer, and cannot just say that a failure to set up an independent appeal, or follow a third party assessment necessarily makes a decision to dismiss unfair.
This a triumph for common sense and allows for each case to be decided on its own facts, but it is by no means safe to ignore an appeal panel, or proceed with an appeal internally where there is likely to be bias (whether actual or perceived). The point is that tick box law may well not produce the right outcome and if a small employer has real concerns about the appeal being dealt with externally, there are often good reasons for this, and if properly articulated the reasons may well be accepted by a tribunal as being valid and reasonable.