Appeals can give employers second chance to get it right

The latest Employment Appeal Tribunal ruling on internal appeals is a reminder that they do not necessarily need to be a complete re-hearing to cure defects in the original disciplinary process. It is also the third misconduct case at EAT level in recent months where social media has played a prominent part.

In this case an airport worker had been disciplined by her employer for unpleasant conduct towards a fellow employee due to the latter having “unfriended” her on Facebook after being promoted. Such conduct included the claimant setting the other’s computer screensaver image to that of a witch. When interviewed by the managing director, she admitted the conduct and was suspended pending disciplinary hearing four days later. Following this hearing, a number of other employees were interviewed about her conduct, but she was not told about the outcome. She was summarily dismissed by letter shortly afterwards.

The claimant requested an internal appeal. All witness statements taken during the investigation were sent to her six days before her appeal date. The appeal was dismissed and the claimant brought claims for unfair and wrongful dismissal, alleging an inability to prepare for her initial hearing, not having seen the evidence against her. The employment tribunal decided that she had been unfairly dismissed. However, the EAT held that the appeal process should have been taken into account and that the shortcomings of the initial disciplinary process may have been cured by the disclosure of all the witness statements before the appeal. The case has therefore been remitted for rehearing.

The employment tribunal has been asked to look at the employer’s disciplinary process as a whole when assessing whether the employer had conducted a reasonable investigation. While it remains the case that a complete re-hearing at the appeal stage is the safest way of dealing with a botched investigation, this case demonstrates that something short of that may suffice.