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