Dismissal: To Appeal Or Not To Appeal, That Is The Question

• Published date: 08 November 2021
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal, Redundancy/Layoff, Employment Litigation/ Tribunals
• Law Firm: Mayer Brown
• Author: Mr Christopher Fisher and Katherine Fox

A failure to offer or carry out an appeal is not fatal to the fairness of a redundancy or SOSR dismissal, but it will be a relevant consideration that tribunals take into account.

In light of two recent cases, Christopher Fisher and Katherine Fox consider whether there are situations in which employers do not need to offer employees the opportunity to appeal against their dismissal

Dismissal: To appeal or not to appeal, that is the question

In light of two recent cases, Christopher Fisher and Katherine Fox consider whether there are situations in which employers do not need to offer employees the opportunity to appeal against their dismissal

A failure to offer or carry out an appeal is not fatal to the fairness of a redundancy or SOSR dismissal, but it will be a relevant consideration that tribunals take into account.

Employers often ask whether they should offer an appeal against a redundancy dismissal or a dismissal for 'some other substantial reason' (SOSR). Unlike misconduct and performance dismissals, the Acas Code of Practice on Disciplinary and Grievance Procedures (the Acas code) does not apply to redundancy or, arguably, terminations for SOSR. Although the accompanying Acas guide recommends an appeal in redundancy cases, that guide does not have statutory force.

The relevant statutory reference is at s98 of the Employment Rights Act 1996 (ERA). Under s98(1)(b) ERA, a dismissal will be fair if it is within one of the permitted categories under s98(2) (such as redundancy) or if it is for:

... some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

If the employer can demonstrate redundancy or SOSR, the fairness of the dismissal will then turn on s98(4) ERA, under which the question is:

... whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee

In this article, we take a look at two recent cases, one from the Court of Appeal and another from the Employment Appeal Tribunal (EAT), which considered the relevance of the offer of an appeal to the fairness of dismissals for redundancy and SOSR.

Redundancy dismissals

As noted above, the Acas code expressly states that it does not apply to redundancies. As such, there is no requirement under the code for employers to offer an employee an appeal against a dismissal for redundancy reasons. Employers will, however, often do this on the basis that it may contribute to the overall fairness of the dismissal and, potentially, rectify any procedural flaws in the first stage of the process. But how relevant is the absence of an appeal to the fairness of a...