EAT substitutes unfair dismissal after “strikingly flawed” appeal process

Background

In Milrine v DHL Services Limited, the claimant, an HGV driver, had been absent for over two years due to vertigo and vestibular migraines. The employer dismissed him for medical incapability following occupational health input and review meetings.

The claimant appealed on a number of grounds, including that the dismissing manager's lack of authority. However, the appeal process became chaotic. The original appeal manager declined to hear the appeal. His replacement failed to attend the rearranged hearing, leaving the claimant and his union representative waiting on site. HR then left it to the claimant to choose the appeal manager and propose new dates, without confirming this in writing. The claimant contacted Acas to begin the Early Conciliation process. He believed this precluded him from pursuing an internal appeal. The appeal never took place and the respondent did not contact the claimant again.

The Employment Tribunal criticised the handling of the appeal but concluded the dismissal was fair overall, noting that the claimant had been offered an appeal and did not pursue it.

EAT decision

The EAT allowed the appeal.

It reiterated that fairness under the Employment Rights Act 1996 requires assessment of the dismissal process as a whole, including any internal appeal. A defective appeal can render an otherwise fair dismissal unfair.

Here, the defects were “striking”. The employer had conceded it was arguable the original dismissing manager did not have the authority to dismiss the claimant, permitted one manager to refuse to hear the appeal, failed to manage the process decisively, and left the claimant unclear as to what he was required to do. The Tribunal had identified these failings but did not adequately explain why, despite them, the dismissal remained fair. Instead, the Tribunal had determined that the claimant was still able to pursue the appeal.

The EAT held that, in circumstances of such serious procedural breakdown and with no finding that an appeal would have been futile, the only proper conclusion was that the dismissal was unfair. It substituted that finding rather than remitting liability.

Learning points for employers

An internal appeal is not a mere formality. It forms part of the overall fairness assessment. Even where the original decision to dismiss is substantively sound, a seriously mishandled appeal can take the dismissal outside the range of reasonable responses.

Employers should ensure that appeal arrangements are clear, managed proactively and confirmed in writing. Responsibility for progressing an appeal rests with the employer, not the employee. Where procedural errors occur, they should be addressed promptly and transparently to avoid undermining the fairness of the dismissal as a whole.

Employers must also be cautious that any policies are fit for purpose and not overly restrictive. Appeals should be holistic; focusing on whether the grounds raised affected the fairness of the decision, rather than attempting to limit the appeal on arbitrary grounds.

For support or advice, please contact Sharmin Chowdhury in our Employment team.