Weekly dilemma: Disciplinary appeals

One of my employees has appealed, on a number of grounds, against a disciplinary sanction we imposed on her. I’m the appeal officer – how should I handle the appeal?

Disciplinary appeals are often big on rhetoric and indignation, and less good on relevant or determinative facts or evidence. Remember that your job as “appeal court” is not to decide whether or not the disciplinary action is procedurally spotless, but whether the ultimate outcome was correct or not. This is doubly the case where the disciplinary action in question is something short of dismissal, where the employee’s rights of external recourse are very limited in any case.

To assist you in that decision you are entitled to seek more information from the employee. Does she say that it would have made any difference to the end result, and if so why? Though you cannot require answers to this as a pre-condition of the appeal meeting going ahead, her failure or inability to respond meaningfully to it will be very relevant to the reaching of your decision.

Tips for handling a disciplinary appeal

  • The meeting should be heard without unreasonable delay. The employee can bring a colleague or trade union official to the meeting. If he or she persistently fails to attend without proper excuse, you may usually proceed in their absence with the material already in your possession.
  • It is essential that the employee is allowed a full opportunity to present their arguments. Even if you do not think they are taking them anywhere, letting them say what they want without interruption will deny them room for argument later.
  • You should notify the employee in writing of the results of their appeal as soon as reasonably practicable after it. Where there was a procedural defect but you believe that it did not make any difference to the end result, your reasoning should be explained.

The most obvious way of determining whether or not the procedural flaws affected the outcome is to run the disciplinary hearing again without them, ie to have a rehearing. This is necessarily a longer and more distracting process than a meeting with the employee about her grounds for appeal, and so although it can be an effective cure for procedural flaws at the first stage, it is usually only worth doing where there is a real chance that removing the defect would have made a difference. If it is apparent to you from the grounds of appeal and any supplementary information provided that the employee has not been prejudiced by those defects, you may consider that a rehearing is an unnecessary luxury. However, the less sure you are about this, the less an employment tribunal would be so either.

In resolving that question you are entitled to see the notes and evidence from the first disciplinary meeting but you should not (be seen to) confer with the first decision-maker. This may lead to allegations of bias even before the employee has presented his arguments.

As is often the case with disciplinary and grievance matters, there is no set strategy that will absolutely guarantee a fair process every time. You will need to be sensitive to the issues involved in each situation and be seen to give proper consideration to the merits of the appeal. If there are clear procedural defects then you should not seek to defend the indefensible, but you are still entitled to conclude that they were not material to the fact or level of the sanction ultimately imposed.

James Keogh and Jenna Parker, Leeds employment department, Hammonds LLP

XpertHR FAQs on disciplinary appeals

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