Defective Appeal

I have written before about the problem of whether one should appeal when an employee has been procedurally unfairly dismissed because of the risk of the appeal upholding the dismissal and remedying the breaches.

The problem is that sometimes an unfair dismissal is turned into a fair one thereby depriving the employee both of the possibility of remedy at an unfair dismissal hearing and  also ensuring that the employee’s dismissal is still maintained.

Last year the employment tribunal in Lawrence v NewLaw Legal Ltd demonstrated that the reverse can also apply – a fair dismissal can turn into an unfair one because of  poorly handled appeal process. In particular, the appeal manager conducted a meeting by telephone, did not ask any questions of the employee, and was over in a matter of minutes. The appeal was not, in the view of the tribunal “conducted with an open mind.”

Lawrence  is not a particularly noteworthy case but it is a helpful reminder that since employment tribunals have found that an appeal process is part of the dismissal process a faulty appeal can be grounds for an unfair dismissal claim (which, absent a further appeal cannot be remedied). As such, not only can should poor appeal process be relied upon for ACAS uplift purposes but as a ground of claim itself.


Don’t Assume, Read.

Letters, especially letters based on pre-written templates in an employer’s HR policies frequently look and read the same. So much so that there is sometimes a temptation to assume we know what is written in the letter without needing to read the whole thing. There is a danger though for trade union reps that that that assumption leads us to miss vital information.

Let me give an example. I have recently been assisting an employee who had previously been given a final written warning for misconduct. He was alleged to have committed further misconduct which was found proven and so because of that further misconduct whilst still on a warning he was dismissed for repeated misconduct, even though the misconduct was stated to be minor. It is common knowledge that where a employee is dismissed for repeated misconduct then, since there has been no fundamental breach of contract, the employee is still entitled to any contractual notice pay; in this case this amounted to over thirteen week’s wages. The manager however decided he did not want to give this and so dismissed the employee without any notice pay. After reading the ‘juicy’ bits of the letter a few times it was only when I read the ‘boring bits’ that I assumed were just a copy and paste job that this decision (I am not sure it was an ‘error’) was identified.

This is not an isolated occurrence. I fairly regularly (maybe 1 in 30 letters?) find reading ‘standard’ letters which have been drafted to ensure the employer complies with the law have been changed by a local manager that when pushed places the employer in legal difficulties and helps protect the employment of union members.  And yet, even knowing that, caseloads and the familiar look of letters still prove a temptation to me when seeing this letters gloss over the contents assuming they say what policy tells them to say. And so, this post is written simply as a useful tip to union reps when receiving letters make sure you read the whole thing from beginning to end – sometimes this can make a huge positive difference to a case.