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Who hears appeals is important

Who hears an appeal can be important to the fairness of a dismissal. It can be difficult to find people who have not had previous dealings with the…

Who hears an appeal can be very important to the fairness of a dismissal. Sometimes it can be difficult to find people for an appeal who have not had previous dealings with the employee or are sufficiently senior, particularly where the employee themselves or the original decision-maker were high up in your organisation. The Employment Appeal Tribunal has reviewed these difficulties in the case of Adeshina v St George’s University Hospitals NHS Foundation Trust and shed some helpful light upon what you can and cannot do. 

The facts

Miss Adeshina was a senior pharmacist who was dismissed by the Trust following disciplinary allegations. The original dismissal decision was found by a Tribunal to have been procedurally flawed and dismissal was outside the range of reasonable responses. However, the internal appeal hearing re-heard the dismissal case (over 12 days) and their decision was found to have followed a fair process and reached conclusions which fell within the range of reasonable responses, so the dismissal was held to be fair because the internal appeal rectified the flaws in the original decision.

That brought the internal appeal panel and its composition to the forefront of argument when Miss Adeshina appealed to the Employment Appeal Tribunal. She argued that the decision of the internal appeal panel was unfair because: one of the panel had mentored the manager involved in the original events; the same appeal panel-member had some involvement in part of the case against her (albeit very limited); and one of the appeal panel was junior to the disciplinary decision-maker (in fact he reported to her).

The EAT gave short shrift to some of these arguments – there is no requirement that members of a panel must have had no prior dealings (or even close dealings) with the individuals involved in the events. The Judgment accepts that such a requirement would be unrealistic and undesirable, employers are entitled to want to utilise the knowledge and experience of relevant members of the senior management team in hearing appeals and such connections as mentoring of those involved would not, without more, render a panel member’s involvement/decision unfair.

However the more junior member of the panel resulted in a more finely balanced conclusion. The EAT noted that the current ACAS code says only that the appeal should be dealt with impartially and, wherever possible, by a manager who has not previously been involved in the case. However the EAT endorsed the more detailed ACAS guidance which says that employers should “wherever possible provide for the appeal to be heard by someone senior in authority to the person who took the original disciplinary decision”.  The EAT says that will generally be right. However in the circumstances of this case where the appeal panel included two Directors of the Trust as well as the more junior manager, and the panel received advice from an independent senior pharmacy professional, the Tribunal was entitled to find that the composition of the panel did not render the dismissal unfair.

What does this mean for me?

We receive many enquiries about appeal panels. Their make up is very important. Who will sit on an appeal needs to be considered early in a disciplinary process, at least when deciding who should hear the disciplinary case and sometimes when working out who should undertake an investigation. Wherever possible you must ensure that you have a more senior manager or director available to hear an appeal, meaning that you should not escalate investigations and decisions to too senior a level too early (a problem for the Chief Executive, Managing Director or Divisional head who wants to personally make every decision). Whilst there may be arguments open to those of you who are part of very small organisations, for the vast majority of you the presumption must be that an appeal is heard by someone more senior than the initial decision-maker (as emphasised by the EAT).

However for those organisations such as NHS Trusts with procedures which require large appeal panels, this Judgment is reassuring. Identifying the right people to hear an appeal can be difficult, particularly if operating under a procedure like MHPS where the panel is large and fairly tightly defined. It can be impossible to identify appropriate (and reliable) senior managers or directors who are untouched by issues relating to very senior managers or those with a history of grievances and disciplinaries. This Trust’s appeal panel was found to be fair, despite the issues raised.

Comment

It is always worth considering carefully any connection between your proposed panel, the employee, and the issues raised. The counsel of perfection is to find panel members untouched by the issues entirely unconnected to those involved. Ensure wherever possible that a more senior person will be available to hear an appeal, because not doing so can render the entire process unfair. However where this is not entirely possible, take advice, as this Judgment proves it is still possible to get the process right.

If you would like to discuss in more detail the implications of this Judgment for your organisation or have any questions about these issues, please speak to your usual Weightmans contact or get in touch with Phil Allen at phil.allen@weightmans.com.

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