Transcription

• Speaker #0

  Today, in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Milrine and DHL Services Ltd in which the Employment Appeal Tribunal was asked to determine whether defects in an internal appeal process had made an incapability dismissal unfair. M was dismissed from his role as a HGV driver for a logistics company. At the time of his dismissal for incapability, M had been absent more than two years due to vertigo and vestibular migraines. M's unfair dismissal claim was dismissed by the Employment Tribunal. Although the Tribunal criticised the procedural failings at the appeal stage of the process followed by the employer, it nevertheless held that M's dismissal was fair, reasoning briefly that M had been offered an appeal but did not pursue it. M successfully appealed to the Employment Appeal Tribunal, which overturned the tribunal's decision due to errors in the tribunal's approach. The Employment Appeal Tribunal said that M's internal appeal, which was intended to be a rehearing, was strikingly flawed. In particular, the nominated appeal manager had declined to hear the appeal but took this decision without informing or consulting M, who was therefore left in limbo. The replacement manager then failed to attend the rescheduled hearing due to illness, but nobody told M or his union representative, leaving them waiting on site for an appeal meeting that did not happen. The HR business partner handling the internal process then placed the onus on M to choose the appeal manager and propose new dates without confirming this to him in writing, and when M commenced the ACAS early conciliation process, believing it to prevent continuation of his internal appeal, the employer did not clarify matters or check his intentions. As a result of these failures combined, the internal appeal never took place. The Employment Appeal Tribunal noted that, despite identifying serious defects in the appeal process, the Tribunal had made no reference in its judgment to the legal principle established in the case of West Midlands Cooperative Society v Tipton and subsequent cases since, that a procedurally defective appeal may, not must, render a dismissal unfair. This was an error of law because the more striking the defects in an internal appeal process, the more it is incumbent upon a Tribunal to demonstrate in its decision and the EAT has decided that a dismissal was, overall, fair. Given the severity of the defects, and absent any finding that the internal appeal process was futile, the only proper conclusion was that M's dismissal was unfair. A finding of unfair dismissal was therefore substituted. This decision is a reminder that offering an internal appeal against dismissal is an important part of the overall fairness of the dismissal process. The onus for organising the appeal hearing rests firmly upon the employer. Trying to place this obligation on the dismissed employee will attract significant risk. Look out for further episodes in this series to stay up to date on all things HR and employment law related.