Case of the week – Communicating the right of appeal

Aptuit (Edinburgh) Limited v Kennedy EAT/0057/06

FACTS Aptuit provides clinical supplies across Europe. Mrs Kennedy worked at one of its three sites in Edinburgh, where kits of medicine were prepared for distribution to those participating in clinical trials. As part of a cost saving exercise, a number of redundancies were proposed. As less than 20 people were being made redundant at the time, the statutory dismissal and disciplinary procedures (SDDPs) applied.

Kennedy was notified that her job was at risk, and she subsequently attended a meeting with representatives from Aptuit’s HR department. Although she was dismissed by reason of redundancy, the redundancy letter made no mention of her right of appeal. She claimed unfair dismissal.

Decision A tribunal found that Kennedy’s dismissal was automatically unfair on the basis that Aptuit had failed to offer Kennedy an appeal against the decision to dismiss her. Because Aptuit was a large organisation, there appeared to be no consultation and it had treated her in a “shoddy manner”, the tribunal awarded a compensation uplift of 40%.

On appeal to the Employment Appeals Tribunal (EAT), Aptuit argued that in her ET1 claim form, Kennedy had not complained about a failure to offer an appeal. On its ET3 form, Aptuit had stated that an appeal had taken place, and there was no application to amend the ET1 to dispute this. It was not until the submission stage of the hearing that it became apparent that the tribunal considered that the SDDPs had not been complied with.

Aptuit argued that the tribunal chairman should have notified them that he did not believe they had complied with the SDDPs as soon as he identified the issue. Aptuit would then have been able to submit relevant evidence.

The EAT found that where a tribunal identifies an issue which favours an unrepresented party, they must notify the represented party as soon as possible in the interests of fairness.

In relation to other aspects of the appeal, the EAT found that there was no obligation to communicate the right of appeal in writing. Additionally, the tribunal had erred in finding that the employer must “offer” the employee an appeal. The SDDPs merely require it to communicate the right of appeal. On the issue of uplift, the EAT found that the tribunal had taken irrelevant matters into account, including the fact that Aptuit is a large organisation, and that there appeared to be no consultation whatsoever. The case was remitted to a fresh tribunal for rehearing.

Key implications While offering the right of appeal in writing would make matters clearer, it is not a requirement of the legislation for the employer. In relation to assessing the uplift for failure to follow the SDDPs, the EAT considered the tribunal had taken into account factors that didn’t relate to the employer’s failure to follow the SDDP, and were therefore irrelevant.

However, it is questionable whether the EAT’s approach is correct, as under the regulations, there is no specific limit on the circumstances that can be taken into account by tribunals considering an uplift.

Michael Powner,
Charles Russell

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