How to manage an employee’s appeal against a disciplinary decision

The disciplinary outcome letter will have specified how to appeal against the decision, who to raise the appeal with, and the timescale by which the individual needs to do this after receiving their confirmation letter.

As explained in our previous article , unless it is simply not practical the appeal should be heard by a manager or director who is more senior than the individual who made the disciplinary decision.

The rest of this article explores the process that should be followed by whoever is considering the employee’s appeal.

Action before the appeal hearing

Before arranging the appeal hearing, if they have not done so already the employee should be asked to put in writing exactly what they are appealing against, so the basis of their appeal is clear. 

For example it may be that they agree with the evidence that was considered in the disciplinary hearing but feel the sanction was too harsh. Or they may feel that the disciplining manager ignored certain evidence that should have changed the outcome or didn’t treat it as seriously as they should have. Or they may disagree with the outcome for some other reason, and if that is the case they should be asked to clearly explain what they are unhappy with so their specific reasons can be considered by the appeal manager. 

Alternatively, although it is rare, the individual may wish to treat the appeal hearing as a complete re-hearing of their disciplinary. That should be allowed, and the process for doing this clarified beforehand with the following options available to them:

• Do they wish the appeal manager to review the evidence and the hearing notes, then decide whether the disciplinary outcome was correct, either with or without a further hearing? Or
• Does the employee want a further hearing with the appeal manager where they are asked the same / similar questions, with the same evidence? Or
• Does the employee have new evidence that wasn’t available at the disciplinary hearing that they wish to be considered that may alter the whole discussion, so a complete re-hearing is needed?

Unless stated in the company’s disciplinary policy there are no specific rules on the timescales for when an appeal hearing needs to take place, or for the appeal manager to review the evidence and make a decision.

According to the ACAS Code of Practice on disciplinary action (see www.acas.org.uk) the employer simply needs to act ‘reasonably’ with regards to timescales and recognise that this is an important issue for the employee that should be acted on in a timely manner.

As a guide, we would advise contacting the individual within 7 days of receipt of their appeal to inform them of the process that will be followed and the expected timescales.

If an appeal hearing is required, the individual should be invited to the meeting in writing and given the necessary timescales to prepare as per the disciplinary procedure. This is normally at least 48 hours i.e. the same as for the disciplinary hearing. If your policy doesn’t specify a timescale we would advise you to revert to this. 

Please see the 186hr Practical Guide to disciplinary action for the CIPD approved model letter inviting an employee to an appeal hearing that you can adapt to the specific circumstances.

The guide is a comprehensive document that includes all you will need in order to carry out disciplinary action and appeals fairly and professionally. It contains CIPD approved model policy documents, detailed explanations of each stage of the disciplinary process, CIPD approved model letters covering every eventuality of each stage, along with 2 hours of telephone-based consultation with a highly experienced, highly CIPD qualified senior HR professional. The guide is compliant with the ACAS Code of Practice and costs £249 plus vat. Click here for further details.

Right to be accompanied at the hearing

As with the disciplinary hearing, employees have a legal right to have a Representative present at the appeal hearing if they choose. The same conditions apply with regards to who they can bring, which should be made clear in the disciplinary policy.

You will recall from previous articles that we strongly recommend that, apart from in certain specific exceptional circumstances, this should be limited to a work colleague or trade union official if the employee is a member of a union. 

For details of what would constitute exceptional circumstances please see our previous article Pitfalls to avoid when taking disciplinary action

Appeal hearing

The format of the appeal hearing should be very similar to the format of the disciplinary hearing in that there are the same three distinct sections: the introduction, the main body of the hearing, and the summary and close.

Introduction

The appeal manager should explain:

• Which policy the hearing is being held under. This will be the appeal section of the disciplinary procedure for conduct, performance, or gross misconduct.
• Confirmation of exactly what the employee is appealing against as specified in their letter of appeal.
• An introduction of all present and their roles during the hearing. 
• Clarification of the Representative’s role if the employee has brought one. They may take notes, make points on behalf of the employee and advise them but may not answer questions directly put to the employee i.e. the employee should answer all questions asked of them prior to their Representative making any additional comments.
• The HR representative (or other staff member if HR are not present) will take formal notes of the hearing. Please see the above 186hr Practical Guide to Disciplinary Action for the CIPD recommended structure for these notes.
• What will happen today i.e. that the individual should explain the basis of their appeal and the appeal manager will ask questions so they can understand the issues fully, allowing the individual to explain things from their viewpoint including any mitigation or reasons why they acted as they did. The appeal manager will then consider all of this before making a decision.
• It is unlikely that a decision will be made today as the appeal manager will need to consider all of the evidence. 
• When a decision is made it will be confirmed in writing to the individual.

Main body of the hearing

• The appeal manager should ask relevant questions so they can fully understand the basis of the employee’s appeal. 
• The employee should be allowed to make any comments or explanations they feel are relevant and submit any additional evidence. 
• The appeal manager and / or the employee may call and interview any witnesses if they choose to (please call us for advice if witnesses wish to remain anonymous – depending on the reason this may be acceptable).
• Towards the end of this section the appeal manager should ask the employee if there is anything else they wish to add or be considered before the hearing closes.

Summary and close

The appeal manager should:

• Confirm that the hearing is now closed.
• Summarise any further action to be taken e.g. anything that needs further investigation.
• Explain that they will now consider the evidence and the individual’s comments and then make a decision.
• Inform the employee that they will receive a copy of the notes taken today and be asked to confirm they are an accurate record of the meeting, or to make any appropriate alterations.
• Give an expected timescale by which a decision will be made (as with the disciplinary hearing you should always sleep on it before making a decision even if the evidence is clear).
• Explain that the outcome will be confirmed in writing, and (unless your policy allows a second appeal) that the decision will be final, with no further right of appeal.

Decision

The appeal manager should then consider the evidence, sleep on it, and make a decision based on the balance of probability whether to overturn or confirm the decision from the disciplinary hearing.

The decision should be a relatively straightforward process if the manager has followed a thorough, structured and professional process as explained in our guide.

The appeal manager should then confirm the decision in writing.

Outcome letter

Whereas ACAS and the CIPD (see www.cipd.co.uk) are quite clear about what should be included in the outcome letter following the disciplinary hearing, they are less so when it comes to the appeal outcome letter.

Based on advising numerous managers regarding such matters, and defending tribunal claims on behalf of employers, we recommend the following are included in the letter:

• Practical details such as confirming the original disciplinary decision and the date it was made; the date and time of the appeal hearing along with who was present.
• A summary of the basis of the employee’s appeal.
• A clear explanation of the decision.
• An explanation of how and why you came to that decision, with enough detail to ensure the employee understands your reasoning.
• What happens next including, where appropriate, a statement of what changes to behaviour or performance are required along with details of any training or other support that will take place.
• A clear explanation that there is no further right of appeal (unless your policy allows two appeals, not recommended) and that this is the end of the appeals process.

The above 186hr Practical Guide to Disciplinary Action includes CIPD approved model letters for the various outcomes of the appeal process to adapt accordingly, including:

• Informing an employee of the employer’s final decision following an appeal against their dismissal.
• Confirming the outcome of a disciplinary appeal hearing – outcome upheld.
• Confirming the outcome of a disciplinary appeal hearing – outcome overturned.
• Informing an employee of the outcome of an appeal hearing regarding poor performance.

In addition to the above template letters the 186hr practical guide also comes with 2 hours of telephone-based support that can be used to help you make a decision regarding the appeal outcome and put together the subsequent letter if that is your preference.

If you are not yet ready to purchase the full guide you can read the blog post The 10 Steps of Taking Disciplinary Action which gives a summary of each stage of the disciplinary process

We hope this article has been of use. If you would like to discuss disciplinary action, or any other HR issues, further, please contact us.