Background
Mr Taylor was dismissed from his employment with OCS Group Limited following an allegation of misconduct.
The tribunal concluded that the dismissal had been unfair because the disciplinary process leading up to his dismissal had been fundamentally and hopelessly flawed.
Although that process had been followed by an internal appeal, the tribunal decided that the appeal could not remedy the defects of the disciplinary process, because it had taken the form of a review of the original decision, rather than a rehearing.
OCS appealed, unsuccessfully, to the Employment Appeal Tribunal (EAT). It subsequently lodged an appeal with the Court of Appeal.
Decision
The Court of Appeal held that there is no rule of law that only a rehearing by the employer is capable of rectifying earlier procedural shortcomings, and a mere review never is. The question is whether the procedure was fair overall, in spite of any deficiencies at the early stage.
Because the tribunal had fallen into the trap of assuming that only a rehearing could make up for earlier flaws, the appeal was allowed and the case was sent back to be reconsidered by a different tribunal.
Comment
One of the key questions considered by tribunals when deciding whether a dismissal was fair or unfair is whether the employer adopted a fair procedure before deciding to dismiss. It is well-established that an employer may be able to make up for procedural defects during the dismissal stage by holding a fair appeal (provided the statutory dismissal procedure has been followed).
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This Court of Appeal decision confirms that an appeal need not always take the form of a complete rehearing if it is to rectify a defective dismissal process. What matters is whether the disciplinary process as a whole was fair, not whether the internal appeal was technically a rehearing or a review.
Nevertheless, the more thorough the internal appeal process, the more likely it is to remedy any earlier defects.
