If you are unfortunate enough to have been dismissed, your employer should offer you the opportunity to appeal.
If you believe that this decision to dismiss you is unfair, it is usually a good idea to appeal. If you do not appeal and later bring an unfair dismissal claim, you may be penalised by the Employment Tribunal for failing to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code of Practice”). They can reduce any compensation you are awarded by up to 25%. The ACAS Code of Practice does not apply to redundancy dismissals or the non-renewal of fixed term contracts.
However, if you do not wish to be re-instated by your employer, you should think carefully before appealing since an offer of re-instatement will reverse the dismissal, meaning you would be unable to bring an unfair dismissal claim. In this situation, it may be better to raise a formal grievance instead.
Your employer should also follow the ACAS Code of Practice which is supplemented by Discipline and grievances at work: the ACAS Guide (“the Guide”) which gives guidance about how to conduct a fair process. Note that the ACAS Guide is not binding. Your employer should also follow their own policies and procedures as they relate to appeals.
The Guide recommends that an employer gives at least 5 working days for an appeal to be lodged but your employer’s policy may differ from this. You should try to lodge your appeal within the time provided unless it is unreasonable. If you are unable to lodge your appeal in time, you should inform your employer of your intent to appeal and that your grounds for appeal will follow.
You should set out your grounds of appeal in writing, explaining why you believe your dismissal was unfair.
You should include any concerns you have about the investigation and/or the hearing. You might have concerns over a failure to speak to a relevant witness, to consider relevant evidence, or to draw the correct conclusion from the evidence that was considered. If new evidence has come to light since the original hearing you should ensure that it is considered as part of the appeal.
You may also have concerns about the suitability and impartiality of the people involved in the investigation or hearing.
You should include concerns over the harshness of the sanction, particularly if you admit the offence but consider your dismissal unfair. Your length of service and disciplinary record will be relevant factors here. Inconsistent treatment is also relevant however, it is not always considered unfair to dismiss one person but not another for the same offence.
Your appeal should be considered by someone who wasn’t involved with the original decision. They should usually be someone more senior to them in the organisation.
You should be offered a hearing to discuss your appeal.
An appeal may be a rehearing of the original case or a review of the decision. An Employment Tribunal will consider the fairness of the whole disciplinary procedure to determine whether the dismissal was unfair.
You have the right to be accompanied at the hearing by a trade union or workplace representative of your choice. You do not usually have a right to be accompanied by a solicitor.
You should ask for permission before recording a hearing. Covert recordings may be admissible as evidence in a tribunal case but may be grounds for separate disciplinary action and are generally disapproved of.
If you are dissatisfied with the appeal outcome you have 3 months less one day from the date of your dismissal to register your claim for early conciliation with ACAS. You must complete the ACAS Early Conciliation process before you can lodge an employment tribunal claim. You should not wait for the outcome of your appeal before registering your claim if the 3 month deadline is coming up. Missing your limitation date will prevent you from bringing a claim for unfair dismissal.