HCR Law Events

22 September 2020

Downgrading a dismissal during an internal appeal process

The thought-provoking Employment Appeal Tribunal (EAT) decision in Phoenix Academy Trust v Kilroy (Kilroy) confirms that an employer’s internal appeal can overturn dismissal of an employee – even where the employee has made it abundantly clear that they do not want their job back.

The facts of the case

Mr Kilroy was summarily dismissed by his employer, Phoenix Academy Trust just before the trust received Mr Kilroy’s resignation letter. In his letter, Mr Kilroy purported to resign, stating that he was going to bring a constructive unfair dismissal against the trust in an employment tribunal (ET).

In view of the trust having dismissed Mr Kilroy before he could resign, Mr Kilroy then invoked the employer’s internal appeal procedure. At this stage, Mr Kilroy’s solicitor wrote to the trust to confirm that “irrespective of the outcome, my client has no intention of returning [to the workplace]”.

Mr Kilroy then submitted his ET1 claim form before the internal appeal hearing was held. During this internal appeal, it was decided that dismissal was too harsh a sanction. Consequently, the decision to dismiss Mr Kilroy was overturned. The trust then presented Mr Kilroy with a final written warning instead, which was thought to be more appropriate and proportionate a sanction.  Mr Kilroy then resigned (again) and claimed constructive dismissal.

The tribunal found that Mr Kilroy had been constructively dismissed, and the trust appealed.

Appeal considered

The Employment Appeals Tribunal (EAT) determined that, where an employee is dismissed and the decision to dismiss is overturned as part of an employer’s internal appeal process, then, in law, it will be as though no dismissal ever occurred. The dismissal essentially evaporates. This can be the case even where, when submitting an appeal, an employee blatantly has no intention of returning to their role.

Practical Implications

The decision in Kilroy meant that the claimant was not dismissed. The reinstatement at appeal had overturned that dismissal. This meant that the claimant would not have been able to bring an unfair dismissal claim.  He was still able to continue the constructive dismissal claim, based on the treatment throughout the process, including the appeal, but this will not always be the case.

Kilroy looks at how an internal appeal operates and its implications. The EAT determined that, by submitting an appeal, an employee is undertaking to be bound by the outcome of the appeal, regardless of what that outcome is.

Employers are often wary of overturning a dismissal decision at appeal. However, a savvy employer may be wise to overturn a dismissal if, upon review and reflection during the appeal process, it becomes apparent that dismissal was not an appropriate sanction and, for example, a final written warning would have been a proportionate sanction.

By overturning a decision, it does not show the employer to be weak; on the contrary, it demonstrates that the employer is taking the internal appeal process seriously, demonstrates the fairness and reasonableness of the employer and, as in Kilroy, can prevent an employee from bringing an unfair dismissal claim against the employer.

Top Tips

Having investigated the conduct of an employee, a reasonable employer will:

  • consider the appropriate sanction, taking into account the alleged or proven conduct of the employee, the employee’s working history (attendance, attitude, performance etc), any justification from the employee for their action(s) and any live warnings that remain on their personnel record
  • permit the employee to be accompanied to a disciplinary hearing by either a colleague or trade union representative
  • permit the employee the right to appeal the outcome of the disciplinary hearing
  • genuinely consider the case at each stage and ensure that those hearing the appeal are suitably senior and experienced. It should be evident to an outsider that the appeal chair is impartial, and has the practical as well as theoretical authority to overturn the previous decision if appropriate
  • seek to comply with the Acas Code of Practice on disciplinary and grievance procedures which can be found here.

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About the Author
Ellis Jessica Walby, Associate

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