Disciplinary - Appeal hearing
12.1 Appeal Process
Appeals against First or Final Written warnings will be heard by a panel consisting a manager (graded MG2 or above*).
In dismissal cases, Appeals will be heard by a Panel consisting a Director/Divisional/ Corporate Director (D1 or above*) and a HR Adviser (not previously involved in the case) or by a Members’ Panel. The employee can decide which.
*Delegated authority cannot be granted to managers below these grades.
Employees who have had disciplinary action taken against them have a right of appeal against
the decision.
The purpose of the Appeal Hearing is to examine the grounds of appeal made by the employee, decide whether the outcome of the case was justified, consider any new evidence, review the decision taken at the disciplinary meeting, and consider the severity or inconsistency of the disciplinary action. Its purpose is not to re-hear the case. An appeal should not result in any increase in penalty.
12.2. Grounds for an Appeal
The employee should provide grounds for their appeal – the following are given as examples:
- There were procedural irregularities which may have prejudiced the decision;
- The panel relied upon irrelevant evidence, facts or factors, which may have materially affected their decision;
- The panel failed to take into account relevant evidence, facts or factors, which may have materially affected their decision;
- Criticisms concerning the employee’s conduct were not adequately investigated or evidence did not substantiate the allegation(s);
- New evidence or information has come to light;
- The manager/panel’s decision was unreasonable given the evidence, facts and/or mitigating circumstances including the employee’s record which were presented at the hearing.
12.3. Registering an Appeal
An employee must lodge, in writing, his/her wish to appeal to the named person on the form provided within 10 working days of receipt of the letter confirming the decision made at the disciplinary meeting.
Where the appeal is against dismissal, employee should indicate whether they wish their appeal to be heard by a manager (graded D1 and above) or Members.
The employee should provide grounds for their appeal.
Appeals registered after this timescale will only be considered in exceptional circumstances.
12.4. Arrangements for hearing the appeal
The appeal should be heard within 20 days of the receipt of the employee’s appeal. However, if the appeal is against dismissal and the employee chooses to have their appeal heard by Members, it should be heard within 30 days of the receipt of the employee’s appeal.
The manager prepares the case statement - ready for distribution - within 10 days of receipt of appeal.
The manager hearing the appeal will write to the emplovee, giving them 5 working days notice of the date, time and place of the Appeal Hearing. The employee should be sent 2 copies (unless otherwise agreed) of any paperwork relevant to their Appeal Hearing including the Management Case Statement submitted by the previous Chair at the time. The employee can then give a copy of the paperwork to their trade union representative or work colleague if they wish. The manager who issued the previous warning should provide a Management Case Statement in response to the employee’s appeal. The Management Case Statement will be forwarded to the employee in advance of the Appeal Hearing.
Where the appeal is being heard by Members, Democratic Services will write to the emplovee, giving them 5 working days notice of the date, time and place of the Appeal Hearing. Accompanying the letter will be documents relevant to the Appeal.
The employee must take all reasonable steps to attend the Appeal Hearing.
The employee has a right to be accompanied by a trade union representative or work colleague and to call witnesses.
Whenever possible, the appeal should be heard within 20 days of the receipt of the employee’s written notification of appeal.
12.5. Witnesses
In exceptional circumstances, where it is considered that witnesses are appropriate e.g. the
witness is introducing information that was not available at the previous meeting, witnesses
may be invited to attend the Appeal Hearing.
Where the employee intends to invite witness/s, they should notify of the names of any
requested witnesses when they submit their appeal. The employee is responsible for inviting
their witnesses to attend the Appeal Hearing.
Where the manager of the previous meeting intends to invite witnesses, they should notify the
manager of the Appeal Hearing a minimum of 3 days before the Appeal Hearing so that the
employee can be notified in writing. The manager of the previous Disciplinary Meeting is
responsible for inviting any management witnesses to attend the Appeal Hearing.
12.6. Conduct of the Appeal Hearing
The Appeal Panel must conduct the meeting ensuring good order and natural justice to ensure that both sides have a fair hearing.
The panel must allow an opportunity for both sides to put their case fully including an opportunity to call witnesses and to put questions to witnesses brought by the other side.
The Appeal Panel will not consider issues that are not relevant to the grounds of appeal.
The panel will adjourn to consider the appeal and whether the disciplinary action taken was appropriate.
12.7. Procedure at the Appeal Hearing
The manager /Chair of Members Panel hearing the Appeal – introduces everyone, confirms purpose of Hearing, advises employee of their right to be represented if not, and asks all present to confirm receipt of documentation sent out relevant to the appeal.
The employee/representative – sets out reason(s) for their appeal, can call witnesses and introduces any new information not previously available to the panel.
Manager who made the decision to take disciplinary action responds to employee’s statement.
Both parties and Appeal Panel given opportunity to ask questions of the witnesses.
Manager who made the decision to take disciplinary action summarises their case.
Employee’s /representative summarises their case.
The hearing adjourns while the panel considers the case in private (only recalling the parties to clarify points of uncertainty on evidence already given. If recall is necessary, both parties will return).
The following is a list of questions the Appeals panel must address.
9. Was there as much investigation as is reasonable in the circumstances, i.e. did the Disciplinary panel have all the relevant information it needed to consider in making a decision to dismiss?
YES
NO
10. Were the requirements of the Disciplinary procedure properly complied with, including advance notice to the ‘employee’ of the allegation to be considered at the Disciplinary hearing?
YES
NO
11. Did the Disciplinary panel pay sufficient regard to any explanation put forward by or on behalf of the ‘employee’?
YES
NO
12. From the Appeals panel papers and the cases submitted at the hearing by both the employee and management, does the appeals panel believe that the ‘employee’ committed the misconduct as alleged?
YES
NO
13. Does the appeals panel believe there are reasonable grounds on which to sustain and justify that belief on the balance of probabilities - is it more likely than less likely that the ‘employee’ did what is alleged?
YES
NO
“YES” answers to all of these questions will mean that the Appeals Panel is in agreement that an act of misconduct was correctly determined by the Disciplinary Panel. The next consideration for the Appeals Panel will be whether the decision to dismiss was appropriate.
14. Does the Appeals Panel find that the misconduct was sufficiently serious to justify the decision to dismiss by the Disciplinary Panel?
YES
NO
15. Does the Appeals Panel find that the Disciplinary Panel took account of any mitigating circumstances put forward by or on behalf of the ‘employee’, and any response to these by management’s representative?
YES
NO
16. Does the Appeals Panel find that the decision to dismiss was reasonable in all the circumstances?
YES
NO
The panel needs to remember that their decision can be challenged internally and externally (Employment Tribunal). The above eight questions should be considered carefully before deciding the appropriate disciplinary action. If the panel can show that they considered all eight of these questions they will be able to demonstrate the reasonableness of their decision and have more chance of being able to defend their decision at appeal or tribunal.
- Manager who made the decision to take disciplinary action and employee (and his/her representative) recalled and Manager/Chair of the Members Panel relays the decision on whether the appeal was successful or not, together with the implications of the decision.
- The decision will be confirmed to the employee within 5 days of the Appeal Hearing by the manager hearing the appeal. They should ensure they provide reasonable justification to support the outcomes.