What Should Businesses Do When Employees Appeal?

Practices in relation to the appeal stage vary across sectors and businesses. Appeals arise in various kinds of process. These include, for example, disciplinary processes as well in investigations and enquiries into employee complaints.

Employer processes and how they interact can be complex. An employer might be fastidious in relation to the steps leading up to the imposition of a sanction or they may be less certain of what an appeal stage should look like. We refer to a recent example of such uncertainty below.

Firstly, there is usually an expectation of an appeal stage, especially where there is a serious sanction being imposed. Companies’ internal policies will often reflect such an expectation. In some employments, there will be agreed procedures prescribing how the employer is meant to run appeals.

A number of Ireland’s codes of practice refer to appeals in some form or other. These references lack legislative force but provide guidance, in some cases they fall short of labelling an appeal stage as mandatory. They unsurprisingly state in general that an employer should have an appeal stage:

• The code of practice on Grievance and Disciplinary Procedures¹ ,which guides the parties on steps and principles, refers to having “an internal appeal mechanism.”
• The original code of practice on dealing with and preventing harassment² merely recommended that “if a right of appeal exists both parties should be informed of it and the time limits and procedures involved”.  The updated 2022 Code³ upgrades this recommendation to stating that a process “should allow for a right of appeal” and further that it should be fair and decided by someone independent of the initial decision.
• The code of practice on dealing with and preventing bullying⁴ states that “an appeals process for both parties should be in place”. It then goes on, helpfully, to state that an appeal stage is “not a re-hearing of the original issues.”

Interestingly the codes tend not to map out for employers what precisely an appeal process may consist of. So, what kind of appeal should an employer consider offering? The answer – except for employers which are subject to binding processes – is this depends.

There are some general principles in relation to appeals which include, where practicable, that the appeal should be heard by someone of appropriate seniority and independence from the processes which precede it. The precise purpose and format of an appeal can often be left to the employer, based on the circumstances before it and may depend to some extent on available resources.

A recent decision of the Workplace Relations Commission⁵ highlights how the appeal stage can be scrutinised. In this case the former employee challenged their dismissal which had been imposed on performance grounds. They succeeded in their claim and were awarded the equivalent of 20 weeks’ pay for unfair dismissal. This was mainly because the appeal stage was deemed to be “cursory” in circumstances in which the Adjudication Officer (‘AO’) considered that a more detailed analysis was warranted at appeal stage. This was partly because there had been a breakdown in the key manager/employee relationship leading up to dismissal and there was a clear conflict of views on the requirements imposed on the employee. The appeal chair is quoted as understanding that the appeal was to function as a review of process only. There was uncertainty as to whether or not the appeal was a full appeal. Most strikingly, it is reported in the Determination, that the HR manager was unsure.

The AO focussed on the extent to which fair procedures were adhered to. The AO considered that, on the facts presented, the appeal process fell short as the internal appeal outcome did not demonstrably canvass all of the complainant’s arguments raised in challenging the dismissal. The appeal chair had appeared to focus on process, which was insufficient in the circumstances.

Concluding Thoughts

Many businesses will be in a position to determine, on the basis of advice, what procedures they should adopt in order to address any matter at hand. Managers who are charged with running any particular stage of the process must ensure that there is clarity on what is required of them, from the initial stage through to any appeal stage.

As an aside, this case proceeded on the basis that “fair procedures” applied to the performance related dismissal at hand. This will not always be so. There will be situations in which the starting position will be debatable as to whether or not the employee has a legal entitlement to fair procedures in respect of the management of performance related issues. In some cases, performance management scenarios will not trigger fair procedures, at least not at the level to which they apply when addressing misconduct issues.

In this case, the AO did helpfully refer to the general proposition that “minor procedural omissions are not fatal once the complainant was afforded due process over the totality” of the process. This highlights that the approach taken at appeal stage may be adjudged to fall short where it is necessary to tie up loose threads or otherwise function as “an independent safeguard” in the process overall.

There may also be instances in which an appeal stage is not required in order to demonstrate the fairness of the process, but as mentioned above, an appeal is generally expected. There will be other instances when a business can tailor its appeal stage to ensure it is appropriate to meet the issues at hand. A business which is sure of the nature of its appeal process and of the rationale for adopting that format would be well placed to avoid or resist legal challenges.

Please note: Within this article we consider some of the general principles of the appeal process. Advice should be sought when putting in a place an appeal stage and dealing with internal procedural matters.