How to Handle a Dismissal Appeal After an Employee has been Dismissed
A dismissal appeal is a formal process undertaken by an employee who believes their termination from employment was unjustified. This procedure allows the employee to challenge their dismissal and present their case for reconsideration. Furthermore, the appeal typically must be lodged within a specific timeframe and follows a set procedure outlined by the employer or relevant laws.
Dealing with a dismissal appeal can be a complex process, requiring careful consideration of legal and procedural requirements. Here’s a guide to help you understand the process and avoid any issues in the future.
Understanding the Dismissal Appeal Process
1. Know the Legal Grounds: Before diving into the appeal process, it’s essential to understand the legal framework surrounding dismissals. Generally, an employee has the right to appeal if they believe their dismissal was unfair or unjust.
2. Clear Policies: Ensure your organisation has a clear dismissal and appeal policy. This policy should outline the grounds for dismissal, the process for an appeal, and also the timelines involved.
Preparing for the Appeal
3. Notification: Once an employee files an appeal, promptly acknowledge receipt of their appeal. This communication should include information about the process and timelines.
4. Documentation: Gather all relevant documentation related to the dismissal. This includes the employee’s records, the reasons for termination of contract, and also any evidence or witness statements.
5. Appeal Panel: Set up an impartial appeal panel. Ideally, this should include individuals not involved in the original dismissal decision to ensure objectivity.
During the Dismissal Appeal
6. Conduct a Fair Hearing: The appeal should be conducted as a fair hearing. Allow the employee to present their case, and be prepared to explain the reasons for the dismissal.
7. Listen and Evaluate: Listen to the employee’s arguments carefully. The panel should evaluate all the information presented. They should also consider if the termination of contract was fair and justified.
8. Legal Compliance: Ensure that the appeal process complies with employment laws. This might involve consulting with legal experts, especially in complex cases.
After the Appeal
9. Communicate the Decision: After deliberation, communicate the decision to the employee in writing. This should include the reasons for the decision and also any next steps if the dismissal appeal is upheld.
10. Follow-up Actions: If the appeal is successful, decide on the appropriate action – whether it’s reinstatement, compensation, or another remedy. If the appeal is not upheld, ensure the decision is legally sound to prevent potential litigation.
Can you advertise for a replacement when the former employee has been dismissed but is appealing against their dismissal?
Yes, you can advertise the vacancy that has arisen as a result of the dismissal of your employee without waiting for the outcome of the employee’s appeal. However, this could lead to a difficult situation for you should his appeal succeed after a job offer has been made to a successful candidate. If they are not reinstated to their previous role because this has already been filled, they are likely to have a claim for unfair dismissal. Alternatively, you may decide to withdraw the job offer made to the successful candidate. However, this could lead to a breach of contract claim, which is the notice period i.e. 1 week.
If their dismissal appeal fails and the termination of contract is upheld, they may argue the fact that you had started the recruitment process for a replacement shows that you did not conduct the appeal process with an open mind and that the outcome had been prejudged. A tribunal might take this into account in an unfair dismissal claim, alongside other evidence of the fairness or otherwise of the procedure undertaken. You should ensure that you can demonstrate the reasons for rejecting the appeal. You should also show that it followed a fair procedure, under which reinstating the employee was a possible outcome.
To avoid such issues our advice would be to avoid unnecessary delays in the appeal process. Furthermore, aim to complete it before recruitment for a replacement begins. However, this may not be possible if an urgent replacement is required.
If you would like support with a dismissal appeal in your business, contact us.