We all make mistakes. Decca rejected the Beatles. The Hindenberg was filled with hydrogen rather than the helium for which it was designed. West Ham have signed Fabianski from Swansea (trust me on that one). We usually have to live with the consequences of our errors. However, that rule doesn’t necessarily apply where an employer has dismissed an employee unfairly.
When an employee is sacked and is minded to claim unfair dismissal, they have a significant incentive to appeal. A tribunal can reduce any award of compensation by up to 25% if they don’t . But how can that be useful to an employer?
Dismissals are frequently found to have been unfair because of the procedure adopted by the employer – insufficient investigation, failure to give the employee a proper chance to deal with allegations etc. Even if the employer addresses and rectifies such shortcomings on appeal, you might be forgiven for assuming that the dismissal would still be unfair. After all, the employee has effectively been denied the chance to appeal – the appeal has really been the “first instance” decision. However, the fact is that a tribunal will look at the matter in the round and is likely to conclude that the earlier unfairness has been rectified and the dismissal will indeed be fair.
This is a powerful weapon in an employer’s armoury. However, it is obviously important that the employer should be alert to the sort of procedural failings that might attract liability in the first place. HR should be involved throughout (and feel free to seek advice from their friendly neighbourhood firm of solicitors).
A recent decision of the Court of Appeal has highlighted a second way in which an employer might head off an unfair dismissal claim. In Patel v Folkestone Nursing Home the court confirmed that the effect of a successful appeal is that the original dismissal “disappears”.
There is clearly some pressure on a dismissing officer to uphold the original decision. They are assessing the judgment of a relatively senior employee in relation to a former employee who is almost certainly open to criticism of some sort. However, if on sober analysis there is a serious risk that the dismissal will be found to have been unfair, upholding the appeal (possibly with a reduced disciplinary sanction) can get the employer off the hook.
Again, the role of HR is crucial. The possibility of defeat at tribunal has to be brought persuasively to the attention of the relevant decision maker, if necessary (again) with the assistance of professional legal advice.
So the message is – don’t necessarily look upon an appeal as an irritant. We all deserve a second chance. Apart from Fabianski, obviously.