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When Is a Right of Appeal Necessary?
Adrian Fryer
Handling appeals can feel like revisiting ground you would rather leave behind. However, from a legal perspective, offering an appeal is not optional in most cases – it is a fundamental part of a fair dismissal process.
Under s98 Employment Rights Act 1996, fairness is judged by looking at the process as a whole. In practice, failing to offer (or properly conduct) an appeal will usually render a dismissal unfair. This is reinforced by the Acas Code of Practice on Disciplinary and Grievance Procedures, which states that employers “should allow an employee to appeal against any formal decision”. A failure to follow the Code can lead to an uplift in compensation of up to 25%.
That said, the position is not entirely absolute. The Acas Code formally applies to misconduct and performance dismissals. It does not apply to redundancy situations and has been held not to apply to ill-health dismissals (see Holmes v Qinetiq Ltd). It will also not usually apply to dismissals for “some other substantial reason” (SOSR), unless there is a disciplinary element (Phoenix House v Stockman).
Even where the Code does not apply, however, offering an appeal will still usually be required for overall fairness. The bar for departing from this is high. Case law suggests that only in exceptional circumstances—where an appeal would be “truly pointless”—can an employer safely omit it.
In Moore v Phoenix Product Development Ltd, the Employment Appeal Tribunal accepted that no appeal was required where there had been an irretrievable breakdown in trust between a company’s founder and its leadership. Given the seniority of the individual, the small size of the business, and the complete collapse in working relationships, an appeal would have served no practical purpose.
However, employers should be cautious. In Afzal v East London Pizza Ltd, the EAT held that an SOSR dismissal was unfair precisely because no appeal was offered. Even though the employer believed dismissal was unavoidable due to immigration concerns, an appeal might have allowed the employee to provide missing evidence.
The takeaway for HR is simple: treat the right of appeal as essential. Only in the rarest cases will its omission be justified – and getting that judgment wrong is likely to be costly.