Appeal (Employment Practice)

Background
Most will agree that those found guilty of an offence should have a right of appeal and this principle applies within the employment relationship. Every employer must have DISCIPLINE and GRIEVANCE procedures incorporating the right of appeal. Ideally, appeals should be heard by someone other than those involved in its determination reviewing the case and reconsidering the decision (and/or the sanction) made.

Commentary
The DTI report ('Industrial Tribunals, Workplace Disciplinary Procedures and Employment Practice') indicated that employers who do not have and use effective disciplinary and grievance procedures, are more likely to lose tribunal cases. The most common failings were management not giving employees a chance to state their case or to appeal to someone not involved in the case.

The Appeal process under the disciplinary procedure could use the Grievance procedure as the appeal clause. This has the advantage that since it is a procedure used for non-disciplinary matters, it may be familiar to employees. However, some employers prefer there to be a specific clause or procedure. Any appeal clause should be short, simple and ideally unconditional. Making the appeal clause unconditional may result in the employer hearing a number of worthless appeals - but better to hear worthless appeals than create a procedurally unfair dismissal. Indeed, an appeal may be as valuable a device for the employer as it is for the employee.

Appeal Procedure
For the guidance of managers dealing with appeals as much as for employees it may be best to provide an appeal procedure.

Example of Appeal Procedure
[The employer] is committed to the concept of fairness in all aspects of employment. This procedure can be used to ensure that disciplinary hearings and decisions are fair and just.

1. Following a disciplinary hearing at which an employee has been made subject to a sanction or penalty, the employee has a right to appeal against the decision to the next higher rank of person to the person conducting the disciplinary hearing.

2. A reminder of this right of appeal, details of the appeal clause and a form by which the appeal can be lodged, will be given to the employee at the same time as the confirmation of the decision regarding the sanction to be imposed.

3. The appeal must be lodged with (nominated employee - NE) within 5 working days (i.e. Monday to Friday excluding any Bank Holidays) of the receipt of the decision regarding the sanction. [Name/position] is available to assist in the completion and submission of the appeal.

- The NE should be someone known to and/or immediately available to employees. Requesting employees to lodge an appeal with the manager to whom their manager reports may inhibit such action - as some will be unaware who this is, and/or be unwilling to approach that person.

- The person providing assistance re-drafting the appeal, should be instructed that their duty is to assist employees in submitting an appeal and should on no account attempt to dissuade them from proceeding.

- If the employee is requested to provide a dated receipt of the sanction decision the date for the receipt of the appeal is easily calculated.

4. The appeal might state the grounds on which it is being lodged although it is accepted that some employees may prefer not to do so.

5. This procedure places no limitation on the grounds for appeal, since any limitation of appeal may appear to some simply to be a denial of justice.

6. The appeal will normally be held within 10 working days of the appeal being lodged in working hours. The employee will be given at least 3 working days notice of the date and time.

7. The employee may be accompanied at the appeal by a [person/another employee] of their choice. (Note: Under the current Employment Relations Bill the rights of those accompanying employees at disciplinary and grievance hearings are to be extended.)

8. An independent person appointed by the employer will take notes. A transcript of the proceedings will be provided to the employee within 2 working days of the appeal. A receipt will be obtained when the transcript is given to the employee. The employee will be advised that they have [3] working days within which they can object to the transcript. Their objections must be lodged with the Chairman whose decision whether to amend/correct the record or not will be final. In the event of an amendment/correction being required, a fresh version of the notes will be issued under the same delivery rules as above.

9. The person conducting the appeal and responsible for making a decision shall not have been involved previously in the events leading to the appeal.

10. The employee can ask all and any such questions that they think are relevant - even re-hearing the whole case if it is deemed appropriate. The employee may present such evidence and/or reasons for mitigation as appears to them to be relevant.

11. Witnesses and evidence may be presented by both sides and every opportunity allowed to both sides (and the person conducting the appeal) to ask such questions as they wish.

12. The person presenting the employer's case at the appeal shall not take part in the decision-making aspect of the appeal.

13. A decision regarding the appeal will be communicated to the employee as soon as possible and in any event within 3 working days.

14. If the appeal decision confirms the original decision then the employee will be advised of a further right of appeal to a director in which case the above guidance will apply to that further appeal.

15. If the further appeal decision confirms the original decision then the employee will be advised of a further and final right of appeal to [the chairman] in which case the above guidance will apply to that final appeal. The [chairman's] decision will be final.

16. If the decision at any stage is to change or cancel the original sanction immediate steps will be taken to affect this and to restore both parties to the position operative prior to such action being applied.

17. If the decision is confirmed and not appealed then within 6 working days the original sanction will be implemented.

18. On confirmation of a decision on final appeal the original sanction will be implemented when the decision is announced.

19. The date of effectiveness of the above procedure is [date]. Changes to the above will not be effective until 21 days after notification on [all notice boards] has appeared.

20. In dealing with all appeals the [Organisation] wishes to ensure that its employees have confidence that their cases will receive full and fair hearings.

Deliberate Delays
Such an appeal procedure allows scope for an unscrupulous employee to 'play the system', deferring the application of a sanction for around 10 weeks and absorbing management time in the process - but this seems unavoidable and at least it demonstrates the fairness of the employer's system.