Employees should be given the right to appeal

Where an employee is dismissed, the ACAS Code indicates that the employee should be given the right to appeal. Where the employee is not given the right to appeal it will be difficult for an employer to persuade the Tribunal that the dismissal was not unfair.

In a recent case, an employee had the right to work in the UK. He had limited leave to remain and was required by his employer (East London Pizza) to produce evidence demonstrating his continued right to work. On the last day before his leave expired, the employee sent his employer evidence of his application to the Home Office. That application automatically extended his right to work. However, the employer could not open the attachment and to protect itself from civil and criminal penalties under the Immigration, Asylum and Nationality Act 2006 it dismissed the employee, but failed to outline a right of appeal in the dismissal letter.

When the case got to Tribunal, the employer argued that there was nothing to appeal against and any new evidence would not have altered the reasonableness of the employer’s belief, at the time of the dismissal, that the employee did not have the right to work.

The EAT said that it was the whole process that was subject to the test of “fairness”, not just the dismissal. It held that evidence of the right to work could have been produced during the appeal process and the employee could have been reinstated without the risk of being prosecuted or incurring a penalty.

This case is a reminder of the importance of reminding the employee of the right to appeal and it is good practice to advise an employee in writing of the right of appeal, when the employer's decision is communicated. The deadline to lodge the appeal should also be stated. The non-statutory ACAS Guide recommends five working days as a reasonable time limit.

It will be risky to refuse to hear the appeal just because the appeal deadline was not met, so employers should consider all the circumstances before rejecting an appeal that is out of time.

An employer should ensure it complies with the appeal requirements set out in any contractual procedure. Failure to do so could constitute grounds for a successful constructive dismissal claim. It is much better to state in the contract that any procedures are non-contractual to avoid this risk.

Remember where an employee does not appeal and makes a claim for unfair dismissal, the employment tribunal may reduce any compensatory award by up to 25%.

Birkett Long’s specialist employment lawyers can provide you with helpful and tailored advice. Contact us for a free 15 minute consultation to see how we can help.  I am based at our Colchester office and can be reached on 01206 217 347 or reggie.lloyd@birkettlong.co.uk.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.