Employees have a right to appeal decisions relating to certain grievance and disciplinary processes, and it’s good practice to offer appeals in redundancy situations as well.
In this blog post we look at the right to appeal in more detail so that you can understand when it applies and how you should deal with them.
The questions answered in this post are:
1. When Does the Right to Appeal Apply?
The right to appeal applies to disciplinary decisions, grievance decisions and flexible working request decisions.
The right to appeal gives employees the opportunity to challenge a decision that has been made and ask for the decision to be reconsidered and potentially overturned.
As examples, if you go through a disciplinary process and decide to issue a first written warning, the employee has the right to appeal that decision; equally, in a grievance process, the employee has a right to appeal against any decision that you make as to how their grievance should be resolved.
2. Do Employees Have the Right to Appeal in Redundancy Situations?
The right to appeal is not mandatory step or legal requirement when making redundancies, however, we always recommend extending the right to appeal to those employees who are selected for redundancy.
When going through a redundancy process, you will have conducted a thorough consultation which will have given the employee the opportunity to raise any issues or concerns they have with the process and selection.
Despite this, it is best practice to offer the right to appeal. The reason for this is that employees may have held back during consultation thinking that they were not ultimately going to be selected for redundancy. When they realise they have been selected for redundancy and will be leaving the organisation they may have points that they wished they had raised.
Without a right to appeal the redundancy outcome, the employee may feel that the only way to raise their issues is through the employment tribunal process and this is time consuming and costly.
A right to appeal gives you a chance to rectify any issues or address the employee’s concerns before the matter escalates. It also demonstrates that you ran a fair and thorough process if you do find yourself defending your decision in an Employment Tribunal.
3. What are Recognised Grounds for Appeal?
The law does not give employees the right to appeal a decision simply because they disagree with the outcome.
Details around the right to appeal are contained in the Acas Code of Practice on disciplinary and grievance procedures and the guide explains that an employee should appeal if they believe a decision is wrong or unjust.
The recognised grounds for appeal are:
- New evidence has come to light that is relevant to the case and may alter the outcome.
- Evidence that was available during the initial investigation and/or hearing has not been taken into account.
- The sanction imposed is too severe and outside of the range of reasonable responses for the situation.
- The sanction imposed is not aligned to the sanctions given to other employees in similar scenarios.
- The process that was followed was not fair or not aligned to either company policy or the Acas code of practice.
- The company has not taken previous conduct and/or performance into consideration.
Whilst these are the recognised grounds, it’s never wise to refuse to hear an employee’s appeal. You may believe that the employee does not have solid grounds for the appeal, but you are always better to go through the process to ensure that nothing is missed and to demonstrate that you allowed the employee the opportunity to fully exercise their rights.
4. Who Should Deal with an Appeal?
Ideally, an appeal should be heard by
- someone who was not involved in the original process
- someone who is more senior than the person who dealt with the matter initially.
So, if an employee’s line manager heard the original matter, then the appeal should be heard by their manager’s manager.
In smaller businesses this is not always possible, so try to do the best you can with the team you have available to you.
Before starting a process, it’s worth giving some consideration to how employee issues will be dealt with in your business so that, wherever possible, there is someone impartial who can be the point of appeal.
You can, of course, instruct a third party such as ourselves to hear the matter on your behalf if there is no suitable person within your organisation.
5. When Should an Appeal Be Submitted?
When you issue an outcome letter for a disciplinary, grievance or rejection of flexible working request, you should include details of the appeal process.
As part of this you will confirm the date by which the appeal should be submitted and this should be aligned to what is stated in the relevant company policy.
Typically, the window within which an employee should submit an appeal is somewhere between 5 to 10 working days from the date of the outcome letter.
On receipt of an appeal, you should look to hold a hearing as quickly as possible to ensure that the matter is dealt with in a timely fashion.
If an employee submits an appeal after the deadline, we would encourage you to hear the appeal anyway. You are under no legal obligation to do so but, if the dispute does result in an Employment Tribunal, you would be viewed favourably for allowing the appeal to be heard.
6. What is the Process for Dealing with an Appeal?
1. The first step in an appeal process is a meeting with the employee.
This allows the employee the opportunity to explain why they are unhappy with the outcome and allows you to ask any questions you have. Remember, the right to be accompanied extends to appeal hearings so, when you write to invite the employee to the hearing be sure to confirm they have the right to be accompanied by either a trade union representative or colleague.
2. After you’ve met with the employee you may need to undertake further investigations into points they have raised.
You should document the further investigations you undertake and, if appropriate, share a summary of your investigations with the employee when you share the outcome with them.
3. Having undertaken your investigation, you should be in a position to write the outcome.
Of course, if you have further questions that you need to put to the employee off the back of your investigation then you can arrange a further conversation with them.
4. When you have all the information you need, write an outcome letter for the employee.
7. What Information Should a Process Outcome Letter Include?
We always advise clients to be very detailed in the documentation they provide throughout HR processes and this extends to appeal outcomes.
It is always possible that an employee issue will end up in front of an employment tribunal judge, and this could be 18 months to 2 years away. It is far better to be able to rely on detailed documentation that was created at the time of the event than on your memory of events that happened 2 years ago.
In the appeal outcome letter you should summarise the key points of appeal that were raised by the employee.
You should then take each point in turn, summarise what the employee said about this point, what your investigations revealed about this point and the conclusion you are reaching.
Having addressed each point in turn you should write a summary setting out your final decisions.
8. What Can the Outcome of an Appeal Be?
When you hear an appeal, you have a range of options open to you.
- Dismiss the appeal in full – this means that you are happy with the process that was followed, happy with the decision that was made and stand by the original outcome.
- Uphold the appeal in part – this means that you think the employee has some valid points that you wish to uphold but some points that you wish to dismiss.
- Uphold the appeal in full – this means that you feel the employee is entirely correct in what they are saying and you wish to fully overturn the initial outcome.
If you uphold the appeal in part then you need to decide on what an appropriate course of action is and this will depend entirely on the situation.
An example could be that you are dealing with a disciplinary appeal and do feel that some evidence was not duly considered.
As a result, you want to uphold this appeal point. However, even if this evidence had been considered you do not believe the outcome would be different and therefore you do not want to uphold the appeal in full and reverse the disciplinary sanction that was issued.
By upholding an appeal in part you are demonstrating balance. You are acknowledging any valid points that the employee has raised whilst explaining why that point does not provide sufficient grounds for reversing the decision.
A final piece of guidance on appeals is that you should never try to rush appeals.
It may seem like a time consuming process but, if anything has been missed or the process has been flawed in some way, the appeal gives the opportunity to rectify these mistakes and potentially avoid expensive litigation.
Equally, if you do find yourself in front of a judge, then demonstrating a thorough approach to the appeal will be beneficial to your case.
Manager’s Guide to Redundancies
Read our comprehensive guide to redundancies providing overview of redundancy requirements for UK employers and detailed insights into key activities and decisions.