Can an appeal manager dismiss an employee after verbally agreeing to overturn the decision? Martin Brewer, partner and employment law specialist at Mills and Reeve, and Esther Smith, partner at Thomas Eggar, offer legal advice.
The question:
If an appeal manager gives a decision to overturn dismissal verbally to the employee but then overnight reflects that they have made an error of judgement, could they go back and in writing uphold the decision to dismiss?
Brian Elliott
Legal advice:
Martin Brewer, partner and employment law specialist, Mills and Reeve
The answer to this is really in two parts. First there is the technical answer. If the disciplinary procedure is such that verbal decisions are given on the day then the decision has been made. The dismissal was, in fact overturned once that decision was given. To alter that decision to ‘uphold’ the original dismissal isn’t really a change of mind, it is a whole new decision, arguably a decision to dismiss. The appeal panel may have that power but a proper process won’t have been followed and the new dismissal will be automatically unfair.
If however the procedure states that the written decision is final then it may be possible to go back in writing with a different view. However, the second part of my response now comes into play-what is it reasonable to do in all the circumstances?
Put yourself in the employees position. They think they have won the appeal and will be coming back to work. They now find out that there is an ‘error of judgement’. But what was the error? What was the basis of the misjudgement? Shouldn’t the employee be allowed to address the appeal manager on the point.
To a tribunal this will look fishy to say the least. They may well conclude that someone senior has leant on the appeal manager because he reached the ‘wrong’ conclusion on the appeal.
In all the circumstances I would exercise some caution.
Martin can be contacted at: martin.brewer@mills-reeve.com
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Esther Smith, partner, Thomas Eggar
They could try but if the employee has been informed of the outcome of the appeal, even if only verbally, then it is highly likely the employee would challenge the decision to dismiss through the tribunals, assuming they have the appropriate length of service to pursue a claim in these circumstances. Also, you would expect there to be minutes of the appeal hearing, and therefore the delivery of the verbal decision, so there would be some paper record to support the initial findings.
The employer could try to rely on some further information that came to light after the initial verbal decision was delivered but they would need to have a pretty convincing reason as to why this information was not available sooner, and why they felt in a position to make a decision on the outcome before having this additional information.
I can’t see a tribunal chairman having much sympathy with the employer’s position in such a case as this!
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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