Employees often say that they feel appeals are a bit of a waste of time, and it is true that in our experience the vast majority of appeals result in the original decision being upheld. However, a recent case illustrated that whatever the outcome, they can play a very significant part in any subsequent claim the employee may make.
The case was Evans-Nixon v Staffordshire South West Citizens’ Advice Bureau and involved a long-standing CAB employee who had been dismissed for redundancy after a series of funding cuts. A selection exercise had been undertaken to determine who was made redundant, and the Claimant argued that she had been unfairly disadvantaged in the scoring process while less experienced colleagues had been retained. She also argued that her age and her disability (she suffers from a brain disorder called leukoencephalopathy) were factors in the CAB’s decision to dismiss her.
The Employment Tribunal considered her case and found that the individual scores had not been discussed with her, and she also had not been given a chance to dispute the scores before the CAB had taken the decision to terminate her employment. On that basis, the Claimant’s dismissal had been procedurally unfair. However, the Tribunal found that there was no disability or age discrimination.
So far, so straightforward. However, the Tribunal also went on to consider the appeal process that had been undertaken by the CAB’s chief executive. It found that she had not undertaken a ‘rubber stamping’ exercise, but rather had listened to the Claimant and had carefully examined the evidence. As a result of her findings, she had upgraded one of the Claimant’s scores (this did not change the outcome because even with the increased score, the Claimant would still have been dismissed).
The Tribunal concluded that the appeal had been a “comprehensive and detailed reassessment” of the Claimant’s situation. As a result, the Tribunal determined that any compensatory award payable to the Claimant should be reduced by 80%, on the basis that the appeal had been so thorough it had demonstrated that even if the Claimant had been able to dispute her scores before her dismissal, the chance of it making any difference was low. This is known as a Polkey reduction (named after a landmark case) and our previous article on Polkey reductions can be found here.
Obviously employers would prefer not to have an unfair dismissal finding against them in the first place, but if dismissal is found to be technically unfair, this case is a prime example of how crucial the appeal stage can be. Ideally appeals should always be heard by someone with sufficient authority to overturn the original decision, and they should be a genuine examination of the issues being raised by the employee.
If you need help with advice on an appeal process or any other aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]). In some circumstances we can also help with conducting the appeal process – for more information see our Investigations, Hearings and Appeals page.