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Appeal hearings: an employer's guide

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Paul & Gearalt from our Employment Team look at Appeal Hearings and talk through the things you need to consider from an employer's point of view.

In this podcast (25 minutes) our Employment partners, Paul Ball and Gearalt Fahy, take a look at the key steps you can take to prepare for an appeal hearing. Paul and Gearalt share their thoughts on what you can do to prepare and what needs to be considered:

  • What should you do to prepare for an appeal meeting?
  • When it comes to communicating a decision, how do you go about communicating it, and who do you communicate it to?
  • Following a decision, what action should be taken,  and is there a timescale for taking this action? 
  • Is there a process for documenting the appeals process?

Host: What should you do to prepare for an appeal meeting?

Paul Ball: It's not massively dissimilar to what the disciplining manager should do to prepare for the disciplinary hearing. So, some of that is the logistics, and some of it is the preparation so that the meeting itself can take place relatively smoothly.

Paul Ball:  I'll deal very quickly with the logistics, making sure that it's ... You know, when it's taking place, where, the date and the times, the individual knows that. So they've been informed in writing of when that is taking place. They've also been informed, in writing, they're entitled to be accompanied. Once again, this is by a union representative or a work colleague. So, the logistics side to the things are all sorted.

And the second part is making sure that you're prepared. So, if you're the manager hearing the appeal, it's understanding what your role is. It's understanding what has gone on that has led to this person being unhappy with whatever decision or whatever action has previously been taken, and why it is they want you to consider that. So, that could be in the context of a grievance. They're unhappy with the outcome of the grievance that they previously raised, and they should have explained in their appeal what, specifically, they were unhappy about. In many cases, that will simply be, "I just don't like the decision." In other cases, it may well be, "I've got more information that's relevant, that you need to be aware of, 'cause I think that if the previous person had known about this, then it may have influenced their decision in a different way."

Similarly, in the context of perhaps a disciplinary process and an appeal in a disciplinary process, the person is presumably appealing against a finding that they have been guilty of something. Or they're appealing against the penalty that's been ... or the decision that's been taken, and the penalty imposed. Or both of those. They should have put in writing what the grounds or the reasons for their appeal are.

So, as the appeal manager, it's important that you, before you go into the hearing, you've got an idea of what it is that's happened before then, to lead to this particular appeal. So, what does that mean? I think, in practical terms, it means you see the decision that they're appealing against. So, the grievance decision or the disciplinary decision. You might wanna then work a little bit further backwards. So, in the context of a grievance, seeing the notes that were taken during the investigation, and the original grievance.

In the disciplinary context, maybe the notes of the disciplinary hearing, and the letter that invited them to the disciplinary hearing. And then, maybe wanting to see the investigation documentation, but not necessarily. And the reason I say that is that often the appeal isn't a complete rehearing. It's a review of what's happened before now, and deciding whether what's happened before now is or is not acceptable, or been done in a weak way.

Gearalt Fahy: Yeah, it's interesting in the way that you explain it, because I can certainly think of two, three, four large clients who, when it comes to dealing with appeals, the appeals managers tend to be more senior, maybe at director level. So, what you're ... You're typically looking at someone who's got a little bit more experience, worldly-wise, who can look at this. Their time is usually at a premium, and certainly what I've seen happen, as I say, on quite a number of cases, is that the appeal manager won't do a lot before the appeal hearing. And it's similar to the approach to perhaps a grievance. So that they're very clear as to the grounds of the individual's appeal.

So, they would go into it with their eyes open, and expect that this is going to be the first of at least two meetings. And that the first meeting would be a listening exercise, clarification, being clear as to what it is that the individual wants to challenge, and why they're unhappy with the earlier decision. And they would say, or would have said, to me that that ensures that they have an open mind. And rather than having any preconceived notion as to what the outcome would be.

Paul Ball: Yeah. I think, in most cases, the appeal manager will know anyway what has gone on. You know, they'll have an idea, just because of their seniority about the information that may well have been shared with them in the context of say, a dismissal, or a serious grievance. So, they'll have known that this has been happening in the background without necessarily having been involved, and not shouldn't have been involved.

But, you know, the logistical stuff I talked about. I wouldn't expect the appeal manager to be doing that themselves. That's really an HR responsibility, but it needs to be done. You know, there needs to be that sort of paper trail in place, so that the appeal hearing flows smoothly from the outset.

Host: And are those, the sort of the things that you've mentioned there, do they also fold into the key things you need to remember when you're arranging an appeal meeting?

Gearalt Fahy: Yeah. And Paul's right in that you would ... In larger businesses, you would have HR who would take the lead, and ensuring that the arrangements are made. But you're essentially dealing with the letter acknowledging receipt of the appeal. That letter may, or may not, make the actual arrangements. But at the very least, before any hearing, then you need a letter which will invite the individual to the meeting, will explain the basis of the meeting, will remind them again of the right to be accompanied, and provide a time, date, location, and if there's any reason why they can't attend the meeting, they should say.

Paul Ball: Yeah.

Host: So, if it's a review hearing, or if it's a rehearing, does that change how we conduct it?

Paul Ball: Yes, it does. Right. Not to a huge extent.

Host: Okay.

Paul Ball: But the two things are a slight different. So, an appeal ... The starting point, typically, is an appeal, is a review of what's happened to date. And unless the person who's raised the appeal is saying that, "I am really unhappy with how the previous process," the disciplinary hearing or the grievance meeting, for instance, "was conducted," and the complete sort of abdication of any kind of formal review in detail of the situation that had led to a disciplinary action, that the way it was conducted was really shabby. Unless they're saying that, the conductor of the review. If, however, they're saying, "You know what? It's not just the decision I disagree with, but I think that, at that stage, they fundamentally missed things that if they had considered, which they should have done, they wouldn't have even reached a decision close to what they've reached. They've got it so fundamentally wrong, because of how they conducted the hearing." So, they might say, "I flagged up to them that there were five relevant witnesses who hadn't been spoken with. They said they'd speak to them. They still haven't spoken with them. Had they spoken with them, their decision would have been fundamentally different."

So, it's not just reviewing whether the decision was a reasonable one, they're saying the way in which that process was conducted was so flawed that you've got to ignore the decision. That would be a rehearing. So, two slight differences.

So, the review would really ... The purpose of the review would simply be to say, "Well, why is it you say that that person made a decision that's wrong? Tell me why it is that you think they've got it wrong." And then reviewing whether, on the basis of what the person is saying to you now, against what you can identify happened at that earlier process, through whatever's documented. And, if it needs to be through speaking with the person who conducted that early meeting ... Unless you can ... just identifying whether you think they've done a reasonable job, and the decision stands up to scrutiny.

The second one, the rehearing one, is they do identify big gaps in what happened to date. The role of the appeal manager is essentially to do the job that should have happened in the first instance. So, that may involve, "And okay, so you said at this stage, we should speak to these five individuals. What is it you say that they've got relevant information to give about? Before I reach my decision, I will make sure that we speak to those individuals about that. And, if need be, I'll come back to you and let you know what it is they've said, or I'll give you notes of the meetings we take place with them, and you'll have the opportunity to review those, 'cause that should have been informed that was available to you at that earlier stage." So, in other words, "I'm going to now rectify the holes that are evident in the process that was followed at the earlier stage, and then make my decision based on ... I have the more complete picture."

Gearalt Fahy: There's a bigger legal point of play here, which is that if we get to an employment tribunal, and a tribunal were to find that the dismissing officer had unfairly dismissed, had reached a decision which was unfair, if you've addressed it the way that Paul has suggested in terms of remedying or putting right any procedural failings, then the appeal manager has the ability to put right those things, and to make an otherwise unfair dismissal fair.

So, it's a second bite at the cherry for the individual because they've drawn to the employer's attention that, procedurally, it was flawed. The employer then says, "That's not acceptable. We now need to look at these things. I have looked at these things, but despite having done that, I agree with the decision that was made on the substance of the allegations, and I wouldn't change the outcome."

Host:  So, it's not when those kind of deliberations, which we've talked about in a number of ways. It's not when the adjournment comes in that that's what they use that for.

Paul Ball: Potentially. I mean, right. I think, in the scenario where it's not clear whether this is something that needs to be dealt with by way of a review or a rehearing. My thought in point would be they were there as a review of what's happened. But be alive to the fact that, depending on what the individual actually says during the meeting, I might need to pause and change my view on that? And you can use an adjournment, even a brief adjournment, that ... to mull that over, or speak to the HR Director or whoever it may well be to get a view on that. And, if need be, when you reconvene, "Okay, on the basis of this, it now appears that you are saying to me that you are criticizing the actual process that was followed at the earlier stage, and not just the decision. In which case, I need to look into whether those gaps, and if there are those gaps, then I, before I make my decision, I wanna do my own digging into those. So, what I will do when we adjourn this meeting, before I make my final decision, will be to ... I have identified the gaps that you are saying are fundamental flaws, and I will address those. And I'll come back to you about those."

So, in some respects, it's the adjournment bit is something that I would be thinking isn't just at the point at the end when I've gone through everything. I'd think about using that in a more creative way to make sure that I'm on the right track.

Gearalt Fahy: Yeah, there's nothing wrong with adjourning. Paul's right. There's nothing wrong with adjourning at any stage. From something as basic as a comfort break through to taking advice on any procedural or technical matters, I think it's ... This is a good example of why it's important to understand the nature of the appeal at the outset, and why investigation or a great deal of investigation before the appeal hearing won't always assist because what you're looking at, in terms of an appeal within a letter, may not be clear. And it may not be comprehensive, and what you might find is that there are twice as many things that that individual's complaining about, including the procedural issues.

Host: When it comes to the matter of making the decision following the appeal hearing, it's kind of going back to what we were saying about the difference between a review and a rehearing. Is how you approach a decision and make a decision different with those two things?

Gearalt Fahy: I think it comes back to whether or not ... If you're dealing with a rehearing situation and there are ... It's alleged that there were procedural failings, and that in some way impacted or influenced the decision against that individual. Well, if you're the appeals manager, and you have taken steps to put that right, and gone away and done the investigation, but it actually doesn't change anything, you fall back then on ... You fall back on the review stage. You fall back on whether or not you would have reached a different decision on the substance of the allegation.

Host:  And taking into account what was set up at the disciplinary hearing around things like mitigation and the individual's previous record, the severity of the behavior, all of those kind of things, like the decision-maker ought to have done.

Gearalt Fahy: Yes.

Paul Ball: I think that with the context of it, if it's not a rehearing, and you're doing it by way of a review, it generally is a bit more straightforward. Because the question you're asking yourself is, "Is there anything wrong with the original decision?" And is it, you know, if by that, "Is there anything wrong in terms of the conclusion reached that the person is guilty of that particular behavior or those other examples." Not, "Was the decision to sack or give a final written warning, et cetera, the right decision at the starting point?" It's "Was their decision that the allegation, that they need to be substantiated one that was open to him on the evidence that was available at that point in time?" If the answer is, "Yes," then the second stage is, "On that basis, is the decision then reached the penalty imposed one that seems reasonable? Or is it completely outlandish?" And if the answer is that it's a decision that seems reasonable, then the appeal officer shouldn't intervene at all, and just simply uphold the original decision.

If that's the case, even if he might not ... He or she might not necessarily have reached exactly the same decision, it's just, "Is that decision one that was reasonable in those circumstances?"

Host: When it comes to communicating the decision, how do you go about communicating it, and who do you communicate it to?

Gearalt Fahy: The most obvious person to communicate that too is the individual. It's something which concerns them, and most likely, no one else. So, communication of the decision could be in person if you've adjourned, and go back to the hearing to let that person know orally.

Alternatively, it's about explaining in writing as to why you reached the decision you did, in relation to the various points of appeal. So, it's ... The sensible way to do it is to identify the point of appeal, and then address it sequentially.

Paul Ball: Yeah. And this is some of the things that were covered when we talked about decisions and disciplinary hearings. I would also make sure you put an explanation of why in there. And as to how you're communicating it too, I think, if it's an appeal against dismissal, in most cases, that means the individual has left, I don't really see anything to be gained by inviting the individual back in to tell him the decision, which they're going to confirm in writing ... I would simply, "We'll confirm the decision in writing." And if the decision is to overturn the dismissal, then we'll explain what that will be," et cetera.

if it's the penalty isn't determination, and it's a final written warning, for argument's sake, then it might be appropriate to tell him the decision verbally, and then follow it up in writing. The person may well be at work, so that you can do ... There's no rigid rule is what we're saying, but there's a couple of approaches you can take, both of which are reasonable.

Gearalt Fahy: But in terms of the penalty, and what your decision is on appeal, you know, what I would always say to an appeals officer is that they shouldn't be afraid to overturn an earlier decision, because that's the ... That's, you know, one of the purposes of the appeal process. And it can be very good evidence in a tribunal that, if it wasn't in that case, in previous cases you haven't been afraid to overturn a decision.

So, a question that is sometimes asked is, "How many appeals have you dealt with?" If someone says, "I've deal with a dozen," and, "How many decisions have you overturned?" "None." It does suggest that you take a certain approach to that. And I'm not saying that that is something that you should do artificially, but it's certainly something to keep in mind, and to have an open mind.

Paul Ball: I think that's absolutely right. And bearing mind, if the reason you're thinking that is likely to be because the person has raised something that has brought into your mind, "Yes, I'm not sure that that was right. I'm not sure that the decision that my colleague took previously really stands up to that much scrutiny." But if you're thinking that, you can bet your bottom dollar, that someone in a tribunal will think that as well. And if you'll then be put on the spot. "Did you not think of this? Did you not ... Did this not cross your mind? And if it didn't, why not? And if it did, well, why did you not explain? Why did it not influence your decision." You know, it's cheap shots that can be raised with you in cross-examination, and then at the tribunal, at the very least, and make that process more difficult than it otherwise needs to be.

Gearalt Fahy: Yeah. I think there's a lazy assumption that you can't, if you like, reverse from a position. Yeah. And to reinstate someone into a position. Now, there may be a very good commercial reason as to why you wouldn't do that, but that's, I suppose, a very separate point.

Paul Ball: Yeah, I agree.

Host: Can you go the opposite way? Can you, if you believe that the original decision was wrong, can you increase the penalty?

Paul Ball: I get asked that a lot. And I understand fully why it is you might want to do that, but I would always be a bit reluctant to consider doing that, because it almost ... If there's a possibility that a final written warning that you may have been given, might lead to a dismissal, you might be disincentivized from exercising the right of appeal, which is something you're entitled to do.

So, I'd be reluctant to do that. If you think that the manager before got it fundamentally wrong, and should have made a different decision, and a more severe decision, including dismissal, then I'd deal with it in two ways.

Firstly, I'd be thinking about whether that manager needs training or some other kind of support to understand why it is that they've reached a particular decision that you think is so fundamentally at odds with the evidence that you've listened to, to get a handle on that. And it might well be that that's a manager who's just unduly lenient or didn't understand the disciplinary procedure, or maybe he's just inexperienced.

With regard to the individual, I wouldn't increase the penalty. But I think what I'd do in my decision is to use words to the effect of, "You're bloody lucky I don't increase the penalty. I could easily increase the penalty here, because if I would have been the disciplining manager, on the basis of everything I've heard, I wouldn't have reached that decision. I'd of thought it reasonable to reach this decision for these reasons. On that basis, I can't find any reason to criticize the previous manager, save that I think he or she was unduly lenient."

Gearalt Fahy: I think it's worth making the point though that appeals against a sanctioned sort of dismissal, like a final written warning, are ... Well, they're not something that we would see that often.

Paul Ball: No. No, that's true. What I have seen a couple of times in tribunal judgments is where the individual has said, "I was dismissed for repeat misconduct rather than gross misconduct. So I was on a final warning that was live. And then something else happened that led to me being dismissed. I shouldn't have been on that final written warning. That was inappropriately given for these reasons." And even if they haven't necessarily appealed against the final written warning, tribunals will be willing to look at whether that final written warning appeared to be, on face value, reasonable or not in deciding whether the person was at the point where subsequent misconduct had occurred that had tipped them over into being dismissed.

So, it's something that can be of some relevance. In which case, the kind of decision that I just outlined a few minutes ago, if you were lucky to have that, 'cause it being, "I may done this," I think would stand you in better standing in the event of a tribunal seeking to look at the earlier warning.

Host: Following the decision that there's gonna be follow-ups, there's gonna be potential action, how do we go about putting that in place, and implementing that? Is there a timescale? Is there a better practice? How does it work?

Gearalt Fahy: It's more likely that this is going to be in the context of a grievance?

Host: Yeah.

Gearalt Fahy: Than perhaps a disciplinary. So, in a grievance context, if we suggest that something should be done, then the most important thing that we do is ensure that it is done, rather than let that slip. So, that's in a grievance context. What about discipline, Paul?

Paul Ball: Well, it may be that if, for example, that you have decided the decision was unduly harsh, that there may be reinstatements to think about, or that maybe it's still dismissal, but with pay in lieu of notice, or actioning and making sure that those kind of payments are made, or the letter has been sent to the individual confirming reinstatement, or contact that they made about reinstatement, I guess, can sometimes happen in a disciplinary context. But it's some of it ... Really, with other remedial actions, it's not just about the treatment or the decision to be taken about that individual, it's about wider organizational things that might need to be done.

So, if it appears that there is something culturally going on within that part of the business that has led to this person raising the grievance, and now the appeal, if that's being picked up in investigation asking, "Have we done anything about that?" You know, the appeal manager tends to be of such seniority that they are legitimately enabled to say, "Have we done what we said we're gonna do? Why not? We should be doing that now." And using their authority to make sure that the action points, that's somebody who has looked at this has identified have actually been done. And the same goes in the disciplinary context.

So, for example, if there have been, you know, this isn't the first time this kind of behavior has happened. "Well, do we need to think about putting in place some training?" And it's not necessarily then doing it, but directing Human Resources, Learning Development, or whoever it may well be to implement some steps.

'Cause the idea about all of these processes, really, is to make sure that people behave in the manner that the organization wants them to do, and that things that have happened that shouldn't have happened, don't happen again. And it's all well and good, taking action against the individual who's perpetrated the misconduct, and it's all well and good trying to reassure the person who's raised the grievance, but if you've identified shortcomings, lack of training, lack of awareness, poor policies, implementation, and things like that, and nothing is done to change those, you're not gonna stop that situation from happening again.

Host: And how do we go about documenting the appeals process?

Gearalt Fahy: In a similar way to how you would approach the earlier stage, whether that be the grievance or a disciplinary. It's starting with the decision letter itself, ensuring that that documents your reasoning for either upholding or overturning the decision. You would work backwards from there. You would have the notes of the meeting itself, perhaps some confirmation that those notes have been agreed, the invite to the meeting or meetings, and then the documentary evidence that arose from any investigation. It's a matter of having all of that in one safe place.

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