Disciplinary Appeal Procedure for Employers: Handling Appeals Fairly

A disciplinary appeal procedure for employers provides an opportunity to review whether a warning, sanction or dismissal was fair and reasonable.

An appeal should not simply confirm the original decision. The employer must consider the employee’s grounds, examine any new evidence and decide whether the outcome should remain, change or be overturned.

A properly handled appeal may correct earlier procedural errors and reduce the risk of an unfair dismissal or breach of contract claim.

Why is a disciplinary appeal procedure important?

The Acas Code of Practice states that employers should allow employees to appeal against formal disciplinary decisions they believe are wrong or unjust.

The appeal forms an important part of a fair disciplinary process. It gives the employee a final internal opportunity to challenge the evidence, procedure or sanction before considering legal action.

An employer that refuses a reasonable appeal may find it harder to defend its actions at an employment tribunal. A tribunal may also adjust compensation where either party unreasonably fails to follow the Acas Code.

Employers should therefore explain the right of appeal in the written disciplinary outcome. The letter should also state how the employee should appeal and any applicable deadline.

What can an employee appeal against?

An employee may appeal against any formal disciplinary action. This can include a written warning, final written warning, demotion or dismissal.

Common grounds of appeal include:

• the employer did not follow a fair procedure;
• the evidence did not support the decision;
• the sanction was too severe;
• the employer treated similar cases differently;
• new evidence has become available; or
• the original decision-maker showed bias.

The employee should normally explain their grounds in writing. This allows the appeal manager to identify the disputed issues and prepare properly for the hearing.

Our article on disciplinary procedures for employers explains the wider process leading to a disciplinary outcome.

Who should hear the disciplinary appeal?

The disciplinary appeal procedure for employers should remain as impartial as possible.

Where practicable, a manager who had no previous involvement in the investigation or disciplinary decision should hear the appeal. That person should also have enough authority to change or overturn the original outcome.

In a small organisation, finding an uninvolved senior manager may prove difficult. The employer should still take reasonable steps to create an impartial review.

For example, it may appoint another director, an external HR specialist or an independent employment adviser. The employer should explain any unavoidable limitations to the employee.

The original decision-maker may need to provide information about their reasoning. However, they should not control the appeal or make the final appeal decision.

Disciplinary appeal procedure for employers – The Hearing

The employer should acknowledge the appeal and arrange a hearing without unreasonable delay.

The invitation should confirm the date, time and location or video arrangements. It should also identify the person hearing the appeal and explain the employee’s right to be accompanied.

An employee has a statutory right to bring a work colleague or an appropriately qualified trade union representative to a disciplinary appeal hearing.

If the chosen companion cannot attend, the employee may suggest a reasonable alternative date. Employers should handle postponement requests in accordance with the statutory rules and their disciplinary policy.

Before the hearing, the appeal manager should review the original allegations, investigation material, disciplinary notes, outcome letter and the employee’s written grounds.

How should the appeal hearing be conducted?

At the beginning of the hearing, the appeal manager should explain the purpose of the meeting and how it will proceed.

The employee should then have a full opportunity to explain why they believe the original decision was wrong. The appeal manager should ask questions, examine disputed points and consider any new information.

The hearing should normally cover:

• each ground raised by the employee;
• the evidence considered during the original process;
• any claimed procedural failings;
• new evidence and why it was not supplied earlier;
• whether the sanction was proportionate; and
• how the employer handled comparable cases.

The employee’s companion may address the hearing, respond to points and confer with the employee. However, the companion does not normally have the right to answer direct questions on the employee’s behalf.

The employer should take accurate notes and provide the employee with a reasonable opportunity to clarify any disputed account.

Should the appeal be a review or a rehearing?

An appeal may involve a review of the original decision or a complete rehearing. The appropriate approach depends on the grounds raised and the employer’s procedure.

A review may be suitable where the employee argues that the sanction was excessive or that the decision-maker misunderstood particular evidence.

A rehearing may be necessary where the original process contained serious defects, substantial new evidence has emerged or the investigation was incomplete.

The appeal manager should avoid applying an artificially narrow approach. If the appeal exposes a significant problem, the employer should address it rather than refusing to consider it because of how the employee worded their appeal.

Where further investigation becomes necessary, the employer may adjourn the hearing. Our article on managing employee misconduct procedures explains the importance of gathering and testing evidence fairly.

Considering new evidence

An employee may provide documents, witness information or explanations that were not available during the disciplinary hearing.

The appeal manager should consider why the evidence is late and whether it could affect the outcome. They should not reject relevant evidence automatically.

If the new material raises significant factual issues, the employer may need to investigate further. It should also give the original decision-maker or other relevant people a fair opportunity to respond.

Where the employer obtains additional information, it should normally share the relevant material with the employee before reaching its decision.

Possible disciplinary appeal outcomes

After considering the appeal, the employer may:

• uphold the original decision;
• reduce or remove the disciplinary sanction;
• overturn a dismissal and reinstate the employee;
• order a fresh investigation or disciplinary hearing; or
• substitute another outcome permitted by the employer’s procedure.

The employer should be cautious about increasing a disciplinary sanction on appeal. Unless its written procedure clearly permits this and the employee receives appropriate safeguards, increasing the penalty could appear unfair and discourage genuine appeals.

If the employer reinstates a dismissed employee, it should address continuity of employment, back pay, benefits and the practical arrangements for returning to work.

Confirming the appeal outcome

The employer should confirm its decision in writing without unreasonable delay.

The letter should explain whether the appeal succeeded, the reasons for the decision and any changes to the original outcome. It should also state whether the decision completes the employer’s internal procedure.

Clear reasons are particularly important where the employer rejects allegations of procedural unfairness or refuses to alter a dismissal decision.

Employers dealing with dismissal should also read our article on implementing fair dismissal procedures.

Common disciplinary appeal mistakes

Employers often weaken their position by treating the appeal as a formality, appointing the original decision-maker to hear it or refusing to consider new evidence.

Other mistakes include delaying the hearing, failing to allow a companion, giving no reasons for the outcome and deciding the appeal before listening to the employee.

The appeal manager should approach the matter with an open mind. The purpose is to test the original decision, not simply defend it.

Advice on the disciplinary appeal procedure for employers

A disciplinary appeal procedure for employers should provide a genuine and impartial review of the original decision. It can identify mistakes, correct an excessive sanction and strengthen the fairness of the overall process.

EBS Law helps employers prepare for disciplinary appeals, review disputed decisions and manage the legal risks surrounding warnings and dismissals.