Can a small employer use an independent panel on an internal appeal, and ignore their decision? The answer is sometimes.
Often a small employer faces the dilemma that having investigated an issue of misconduct and carried out a disciplinary hearing, there is no senior manager who was not previously involved in the case available to deal with any appeal. The employer will be concerned that a dismissal will be unfair if it cannot provide an independent appeal process. Equally, the employer is loath to lose control of the process and have someone outside the organisation hear the appeal when they do not understand the culture and standards of the employer and the personalities involved.
The employer’s worst nightmare is to find its decision to dismiss overturned by a third party. This is what had happened in a recent Employment Appeal Court (EAT) case, in which the Tribunal allowed the employer’s decision to ignore the successful appeal and proceed to a dismissal. The dismissal was nonetheless fair in all the circumstances which included:
- The employer is a nursery whose first concern was for the children in its care.
- The appeal panel were only asked to review the decision made, and did not have authority to bind the nursery with its decisions.
- Further information came to light as a result of the appeal process which was later investigated.