In the recent case of Milrine v DHL Services Ltd, the Employment Appeal Tribunal (EAT) considered the extent to which a defective internal appeal process can render unfair a decision to dismiss, that would otherwise have been fair.
The law
Whether a dismissal is fair depends on whether, in the circumstances, the employer acts reasonably in treating its reason as a sufficient reason for dismissing the employee. When considering whether an employer has acted reasonably, tribunals must consider the process as a whole, including any internal appeal.
The Acas Code of Practice identifies the importance to fairness of an employer allowing “an employee to appeal against any formal decision made”.
The facts
The claimant, a heavy goods vehicle driver, was dismissed for medical incapability after more than two years’ absence due to vertigo and vestibular migraines. The internal appeal process was, as the EAT said, “strikingly flawed”. The nominated appeal manager declined to hear the appeal. His replacement did not attend the rescheduled hearing, leaving the claimant and his union representative waiting on site. The HR business partner then placed the onus on the claimant to choose the appeal manager and propose dates, without confirming this to him in writing. The internal appeal never took place.
The claimant brought a claim for unfair dismissal. The tribunal rejected it, despite the failings in the appeal. The claimant appealed.
The decision
The EAT held that the failures in relation to the appeal made this dismissal unfair. An appeal is an important and normal component of fairness and a procedurally defective appeal may (not must) render a dismissal unfair. The EAT did confirm that in some cases, an appeal would have been futile, such that a failure to offer an appeal would not make the dismissal unfair.
In this case, the EAT said that the employer’s actions “fell very far short of good industrial relations practice” and therefore took its overall decision to dismiss outside the band of approaches open to a reasonable employer. A finding of unfair dismissal was substituted.
Tips for employers
This case demonstrates how important appeals are in fair dismissal procedures. With the unfair dismissal qualification period being reduced from two years to six months from 1 January 2027, many more dismissals will be caught by the law of unfair dismissal.
Also, on 1 January 2027, the cap on compensation for unfair dismissal will be removed. This means that extra care will need to be taken with dismissals of high earners, anyone with significant bonus, commission, LTIP or other incentive entitlements or anyone whose dismissal may result in long term/ career ending losses.
