Delayed Appeal

ufHMCTS have recently published the decision of the first tier tribunal in Ward v Marks and Spencer PLC in which the claimant alleged she had been unfairly dismissed. The decision is not particularly remarkable and, based on the facts summarised, the finding that the claimant was not unfairly dismissed seems reasonable at least in so far as the decision making up to and including the dismissal itself is concerned.

There is one issue however where I am somewhat sympathetic to her complaint. The claimant was dismissed for gross misconduct and was given five days to appeal the dismissal after receiving the letter. At the disciplinary meeting the claimant signed notes of the meeting and was informed that a typed copy of these minutes would be sent to her.

Around three weeks later the claimant tried to  appeal which was comfortably outside the 5 days allowed to appeal. The employer refused to consider the appeal. At the tribunal the claimant explained that the reason for the delay was she had not been sent the minutes of the disciplinary meeting that she had been promised and was waiting for these before the appeal was made. When she did make the appeal out of time the claimant explained that the reason was that she was waiting for the minutes but despite this explanation the employer refused to even consider the appeal.

In the context of unfair dismissal complaints it is not just the actual decision to dismiss that is considered but the whole dismissal process, including appeal and the employer must act reasonably at every stage. The interesting question in this case is was the refusal to entertain the appeal reasonable?

In the judgement there is a somewhat cursory reference to the ACAS Code of Practice on Disciplinary and Grievance Procedures but it is worth revisiting what the Code says on these issues. In respect of appeal the ACAS Code provides that:

Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.

One thing that is noticeable is that there is no actual time limit for an appeal to be lodged but the judge is surely right that it is reasonable to impose some limit. However, this is not just a case of a late appeal for no reason. The (non-statutory) ACAS Guide which expands on the Code explains that a reasonable disciplinary process will provide “copies of meeting records … to the employee including copies of any formal minutes that may have been taken.” The relevance of this is that an employee’s ability to effectively challenge a dismissal or that matter even obtain advice on the viability of a challenge will be severely constrained if she is unable to see all the evidence upon which the decision maker based their decision as well as the breach providing a mechanism for the unscrupulous employer to exclude information from an employee to constrain their ability to challenge adverse decisions.

In Ward the fact that the claimant had not explained the problem to the employer was held against her; I struggle to see how that is really an effective criticism since, as the judge found as a matter of fact, the employer had promised these minutes would be provided to the claimant.  Upon rejecting to consider the appeal the employer would therefore know that they had not kept a promise to provide information to the claimant and so refusing to consider an appeal despite knowing that that promise had been breached does seem to me to be unreasonable.

The practical lesson from this case of course is that if an employee is constrained from exercising a right of appeal then the fact that the employee wishes to appeal but is constrained from doing so because of employer failures should be communicated to employers within the time limits or, alternatively seek mutual agreement for an extension of the time limit from the employer before this becomes relevant.