Decision: Procedural flaws in the first stage of a disciplinary process can be remedied at the appeal stage if the appeal is conducted in a comprehensive and fair way. In this case, the appeal panel conducted a full re-hearing of the matter and carried out very thorough investigation. The fact that some of the members of the appeal panel had prior dealings with the employee concerned did not render the subsequent dismissal unfair. The court explicitly took into account that the employee had been legally represented during the appeal stage and had failed to pursue the argument of the panel’s composition at that time.
Impact: The case highlights the importance of the appeal process. It shows that it is possible to remedy initial deficiencies in procedure by operating a comprehensive and fair appeal process. The decision also recognises the challenges employers might face concerning the composition of an appeal panel. Although the ACAS guidance on appeal procedures states that employers should “whenever possible provide for the appeal to be heard by someone senior in authority to the person who took the disciplinary decision and if possible someone who is not involved in the original meeting or decision”, the court accepted that this is not always achievable. Small organisations may encounter difficulties in finding someone of sufficient seniority who is also independent, whereas larger organisations may find it difficult to identify someone who has had no prior dealings with the employee, but who also understands the business unit to which the employee belongs. Finally, the case demonstrates that it will be more difficult for employees with legal representation to raise arguments in front of the tribunal that have not been seriously taken up with the employer during the disciplinary hearing.
Adeshina v St George’s Hospitals NHS Foundation Trust and others