Appeals by employees

What is an appeal? 

An appeal occurs when you – as an employee – formally write to your employer and ask them to reconsider a decision that has been made against you. You have the right to make an appeal and to challenge a wide variety of decisions, as outlined below.

Why should you appeal?

Most employers offer employees the right to appeal a decision taken about them.  The Acas Code of Practice on disciplinary and grievance procedures – which include appeals – says that employers must allow you the right to appeal decisions in cases such as grievances, disciplinaries and misconduct or poor performance dismissals. (See below for more.)

Employment law requires that the Acas codes are taken into account in all unfair dismissal hearings, and so if you’re not given a right to appeal a dismissal such as misconduct or performance, the dismissal is likely to be unfair.

The Acas codes and your right to an appeal, don’t however apply to other types of dismissal, such as redundancy.

Your employment rights mean you can appeal a decision if you believe it was unfair, biased or based on factually incorrect information. For example, 

• If you can demonstrate that the person who took the original decision about you was biased against you for some reason.
• If, in the case of misconduct, you can show that the punishment was too harsh or disproportionate to the conduct;
• If new evidence has become available that you want to present.
• if there were failures in the decision-making process, such as not giving you enough time to prepare for the different stages of an appeal, or your employer failed to follow their own procedures.

You can use appeals as part of an ongoing negotiation about an issue that may eventually end up being settled informally or at an employment tribunal.  Appeals can also be used in a one-off situation, where you appeal a decision and – depending on the outcome – you continue in your employment.

If you are going to appeal against a decision, then it’s important for you to do so quickly. If you don’t act promptly, then your employer may think you have accepted their decision.

What can you appeal about?

You can appeal against actions or decision taken against you, such as:

•     Dismissals of any kind (including redundancy)
•     Management decisions about your performance or conduct
•     Grievance outcomes
•     Requests not granted for flexible working and similar

Your workplace disciplinary or grievance policy document should tell you how and where you can make an appeal. If such a policy document doesn’t exist, the information may be given in your contract of employment.

In the absence of any company policy document or relevant information in your contract, your employer would, as a minimum, be expected by an employment tribunal to have followed the Acas code referred to earlier.

What is the correct appeals procedure?

Generally speaking, a correct appeals procedure is one that adheres to the Acas code of practice referred to above, and takes account of the following:

• If your company has a policy document that deals with appeals, you should follow the guidelines provided there.
• If a policy is not available and your contract of employment doesn’t say anything about appeals, raise the appeal with your employer and always in writing.
• The appeal letter should be addressed to someone more senior than the original person who oversaw any part of your initial case and should not involve anyone who was involved in making the decision that you are now wanting to appeal against.
• In smaller organisations, this may prove more difficult, but your employer should try to accommodate the above wherever possible to ensure a fair outcome. 
• Appointing an unbiased external person to conduct the appeal could also be an option for an organisation, in which case it would probably be in everyone’s interests if you were consulted about such a course of action as well.

What about your appeal hearing?

Your employer’s role at the hearing

At the start of the meeting the person chairing the appeal hearing should introduce those present and state the purpose of the event.  They should outline what will happen during the hearing and what ruling power they may have as the person chairing the appeal.

The chairperson should check with you why you are making the appeal, invite you to present any new evidence you may have gathered and ask you to guide them through the main points of your appeal. At the end of the hearing, they should summarise everything that has been discussed and outline the next steps before closing the hearing.

In order to make a final decision about the outcome of the appeal, the appeal hearing panel will need to assess whether the original decision was fair. If they believe it was unfair or made incorrectly, they may change the decision.  They may wish to carry out further investigations or launch a new investigation if more information is needed before a final appeal decision can be made.

Your role as appellant at the hearing

As the person making the appeal (the appellant), it’s always a good idea to prepare yourself in advance for your appeal hearing. 

Not only should you familiarise yourself with the company appeals policy and procedures (or if there aren’t any in writing, with the Acas code of practice referred to earlier), but also do some research on how to conduct yourself in workplace situations such as this. Making time to rehearse what you are planning to say is also a good tactic.

An appeal hearing gives you the opportunity to overturn the original decision. It should present a chance for you to state why you believe the first outcome was wrong or unfair and to highlight what you believe may have led to this decision. 

For the purposes of your presentation, it’s a good idea to make a written list of the points you want to make and to refer to it when you are presenting.  Try not to deviate from it unless absolutely essential. It’s very easy to get side-tracked when you are in a stressful situation like this and to end up not having mentioned some important parts of your argument.

If you have gathered together new evidence you should be able to offer it both verbally and in writing to support your appeal and be prepared to answer questions about it.

You should also raise any discrepancies you believe exist in current workplace policies and practices related to your case and ask any questions you may have about the appeal procedure. Your employer should respond to your questions and offer their professional point of view on the matters raised.

Appeal outcome: what should you do about it?

If a new investigation has taken place the person overseeing it should compile a confidential report and you should also receive a copy.

The Acas code says that the appeal decision should be provided as soon as possible. However, there is no fixed date by which the decision has to be provided to you unless it’s stated in your employer’s appeal procedures or has been specified at your appeal hearing. 

If there is a long delay – say, more than a week – ask your employer when the decision will arrive or if you have a trade union representative refer to them for help.

The appeal outcome document should inform you of the reason for the appeal panel’s decision, and if required, whether or not you have the right to appeal it again.

What if you disagree with the appeal outcome?

If you appealed but the appeal panel did not uphold your appeal, you should consider whether the appeals panel dealt with your appeal fairly or not. Examples of an appeal being dealt with unfairly include:

• The appeal was conducted by the same person who carried out the dismissal
• Your employer did not consider all of the points of the appeal
• Your employer did not follow their own appeals policy or the Acas code of practice on appeals.

Depending on the fairness and/or severity of the appeal decision, its impact on your employment at the organisation and your right to appeal further, you may want to consider taking professional legal advice. See Next Steps below for how Monaco Solicitors could help.

Another way forward is to contact Acas to see if they can help you and your employer to resolve your dispute through what’s called ‘early conciliation‘. This is where an Acas representative called a conciliator tries to help you and your employer to reach a mutually acceptable settlement agreement rather than have to face an employment tribunal.

This Acas process suits some people, but the main drawback is that Acas conciliators act in a neutral capacity, and don’t take sides. They also can’t give an opinion on your case or offer you legal advice. 

Next steps

If you would like to explore the option of having an experienced employment lawyer’s opinion and getting legal advice on your case, then our team of specialists at Monaco Solicitors will be pleased to help you.

Get in touch with our friendly legal team to find out what kinds of support we can offer:

• through our website for a callback here
• by email: communications@monacosolicitors.co.uk
• by phone: 020 7717 5259