This article has been updated from an older version, to reflect current current advice and best practice...
Often when an employer is required to consider a disciplinary appeal, appeal managers can be accused of ‘going through the motions’. However, if you are managing a complex appeal be sure to encourage and train your senior managers to ensure that they approach appeals with not only an open mind, but with a thorough understanding of the processes an employer is obliged to follow; both contractually and based on the ACAS code of practice. In some cases, it might even be the correct course of action to re-hear the original case in the disciplinary appeal. Completing a detailed analysis of the basis of appeal is often necessary in these cases to ensure the signals for a ‘rehearing’ are not missed. It may also be necessary to assemble a panel with an independent advisor to overhear the appeal to ensure the appeal serves the intended purpose; ensuring fairness and integrity in the disciplinary process and a reasonable decision is reached.
Taking this approach protected the employer at both Employment tribunal and EAT in the case of Adeshina v St George’s University Hospitals NHS Foundation Trust and others. In this case it was found that the procedural flaws in the first stage of a disciplinary hearing and an employer’s failure to comply with the Acas code in relation to the members sitting on an appeal panel, did not render a dismissal unfair.
The Claimant in the case, Ms Adeshina, was employed as a Principal Pharmacist in the Prison Service. She was tasked with leading a project to alter the way in which prison pharmacy services were provided. A number of allegations of misconduct were raised against her including an alleged failure to co-operate with, support and lead the project as well as unprofessional and inappropriate behaviour in the workplace. Disciplinary proceedings commenced and were carried out by a Ms Ashworth. Following a disciplinary hearing, the Claimant was dismissed for Gross Misconduct. The disciplinary process followed by Ms Ashworth was procedurally flawed - the fact that Ms Ashworth based her decision in part on issues which had not been put to Ms Adeshina during the disciplinary hearing was one of the procedural failings identified. Ms Adeshina appealed the decision to dismiss her.
The appeal panel consisted of three senior managers. One member of the panel (Mr James) was more junior than the disciplining manager and he reported in to her. Another member of the panel (Ms Ludlam) had been involved in an operational policy document which formed part of the case against Ms Adeshina. Ms Adeshina also objected to Ms Ludlam’s presence because she mentored one of the employees who had raised concerns regarding Ms Adeshina’s behaviour in the workplace. An independent advisor was also appointed to the panel.
The appeal took the form of a formal rehearing of the case against Ms Adeshina rather than simply a review. The panel upheld the decision that Ms Adeshina’s conduct constituted gross misconduct and that dismissal was an appropriate sanction.
Ms Adeshina brought a number of claims against her employer including unfair dismissal. At first instance, the Employment Tribunal identified a number of procedural failings in the first stage of the disciplinary process. However, it held that those flaws were corrected by the thorough appeal process followed and, accordingly, the dismissal was fair.
Ms Adeshia appealed the tribunal’s decision to the EAT and the EAT upheld the tribunal’s findings. It found that the tribunal had taken in to consideration the nature and extent of the failings on Ms Ashworth’s part and that it had considered the flaws in the context of the appeal process. The EAT held that the tribunal had, as it was required to do, looked at the process as a whole and concluded it was fair.
In relation to the composition of the appeal panel, the EAT recognised that employers can face challenges when identifying an appropriate appeal hearing manager. It noted that, often, senior managers will have had some involvement in the management of a number of employees and could well sit on disciplinary panels in respect of those employees. The EAT found that it would be impracticable and undesirable for senior managers to avoid these potential connections and held that prior dealings with an employee, without something more to suggest bias, could not render a dismissal unfair. Whilst the EAT supported Acas’s advice that the appeal hearing panel should be senior to the original decision maker, it concluded that this must be considered in context. In this case, Mr James was only one of a panel of three and the employer had also instructed an independent third party to sit on the panel – this was enough to put to rest any concerns that Mr James could be either unduly influenced or unable to overturn Ms Ashworth’s decision to dismiss.
The case demonstrates that procedural flaws in a disciplinary hearing can be remedied at appeal stage, if the appeal process is sufficiently thorough and it is encouraging to see the EAT taking a pragmatic approach rather than simply applying the Acas code. In this case, the employer decided to carry out a full rehearing at the appeal stage and, in cases where failings or flaws have been identified in the first state of the disciplinary procedure, this is the best course of action to take.