Case update
The importance of a fair internal appeal process when dealing with dismissals
In a recent case, the Employment Appeal Tribunal (EAT) substituted a finding of unfair dismissal, holding that serious flaws in the employer’s handling of the internal appeal meant that the dismissal was unfair overall, despite the underlying reason for dismissal being potentially fair.
This case is a stark reminder that, even if an employer has a fair reason for dismissal, an unfair process can render the dismissal unfair. We therefore set out further below a reminder of the key points relating to a fair dismissal process.
Background
Mr Milrine (the Claimant) was an HGV driver employed by DHL Services Ltd (DHL). He was absent from work for over two years due to health issues, including vertigo and vestibular migraines. Eventually, his HGV licence was revoked by the DVLA, and medical evidence indicated no realistic prospect of a return to driving duties within a reasonable timeframe.
Following an occupational health assessment, discussions with the Claimant and consideration of alternative roles, DHL dismissed the Claimant in June 2022 on the grounds of medical incapability, with notice and a payment in lieu.
The Claimant sought to appeal the dismissal through DHL’s internal appeal procedure. However, the appeal process was marked by serious procedural flaws, including:
- the initially nominated appeal manager declining to hear the appeal without informing or consulting the Claimant;
- a replacement manager failing to attend a rescheduled hearing, resulting in the Claimant and his trade union representative attending unnecessarily;
- DHL’s HR representative placing the burden of choosing the appeal manager and proposing a date on the Claimant, without following up on progress; and
- DHL failing to clarify matters when the Claimant commenced ACAS early conciliation, with the Claimant believing (incorrectly) that this prevented the internal appeal from continuing.
As a result, the internal appeal process never took place.
ET decision
The Employment Tribunal (ET) initially dismissed the unfair dismissal claim brought by the Claimant. Although it acknowledged the procedural failings by DHL at the internal appeal stage and that DHL certainly did not handle the appeal according to best practice, it concluded that the Claimant had “undeniably” been offered an internal appeal and had not pursued it due to his mistaken belief that ACAS early conciliation prevented the appeal from continuing. The Claimant appealed this decision.
EAT decision
The EAT allowed the appeal by the Claimant. It held that the ET had failed to apply the principle established in West Midlands Co‑Operative Society v Tipton, namely that defects in an appeal process may render a dismissal unfair.
The EAT emphasised that the more serious the procedural defects, the greater the need for the tribunal to explain why the dismissal should nonetheless be regarded as fair overall. After applying that principle and, given the severity of the failings on behalf of DHL, the EAT held that the dismissal of the Claimant was unfair.
The EAT further confirmed that tribunals must assess the dismissal process as a whole and not focus solely on whether the employer’s original decision to dismiss was reasonable.
