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Damian Warbuton: It's just not fair!

Monday 18 July 2016

Acas Senior Adviser Damian Warbuton explains the role of an appeal manager in a disciplinary hearing.

Damian Warburton Damian Warburton

Damian Warburton joined Acas in 1996, after a career in various Central Government departments up and down the country. He initially worked as an individual conciliator settling claims across the full range of Employment Tribunal jurisdictions before moving on to advisory work in 2003.

Since then he has worked with a range of public and private sector organisations across the North West, working with both staff and management to provide advice, training and support to improve employment relations and business performance.

The role of the appeal manager in a disciplinary hearing is a tricky one with a number of different, and sometimes conflicting, issues to consider when you're making your decision. Should you be seen to back up the disciplinary manager? Was the process applied correctly? How good are the reasons for the appeal and what should you do if you agree with them?

I'm amazed at how much misunderstanding there is about what should and shouldn't be done at appeal, how persistent some of the myths have proven to be and in particular how many very experienced managers, HR professionals and trade union officers wrongly believe that if you spot a procedural flaw you need to either overturn the decision or start the whole process over again.

There are many potential grounds of appeal but experience tells me that if you're hearing an appeal it will probably be for one of the following 3 reasons, each of which needs to be assessed slightly differently.

A. There is new evidence

Typically this means either:

  • your investigation was insufficient and there was evidence that was available but wasn't uncovered at the time
  • or that genuinely new evidence has come to light.

The key question to ask here is "what difference does this new evidence make?" You will need to assess the existing evidence and this new material together and decide whether or not the original conclusions are still sound and the decision remains a good one.

B. The sanction is too harsh

This will often be an allegation that other members of staff have done the same thing and been treated more leniently.

In this scenario it is important to remember that you need to decide whether the comparator cases are genuinely similar to the case before you. It isn't, for example, reasonable to say that an allegation of fighting should be compared to other potential gross misconduct offences like theft or serious breaches of health and safety - you're comparing apples with oranges. If the cases are, on the face of it, the same or very similar then you will need to look carefully at the surrounding circumstances - things like provocation, mitigation or the consequences of what happened - to assess whether or not they're genuinely comparable.

C. You haven't followed your own procedure

Well it's pretty obvious that you should have followed your procedure - you wrote it after all and it's entirely reasonable to expect that you stick to it! However, mistakes sometimes happen and it's important that you again consider carefully whether or not any failure to follow the procedure actually made any difference to the original decision.

If it is still possible to comply with your procedure - for example by allowing the individual to make representations - then you should do so as flaws in the original procedure can be "cured" at the appeal stage [Clark v Civil Aviation Authority 1991 IRLR 412 EAT].

The overriding concern for the appeal manager should always be to come up with a fair decision. One which either confirms the existing sanction or overturns the original decision and imposes a lesser sanction or, sometimes, no sanction at all. As much as you might be tempted on review to think that the original disciplining manager was too lenient you should not increase a sanction on appeal unless you have an express contractual right to do so [McMillan v Airedale NHS Foundation Trust [2014] IRLR 803 CA].

If you're faced with the unenviable task of holding an appeal hearing you could do much worse than take a quick look at pdf icon Discipline and grievances at work: The Acas guide [805kb] and our pdf icon Code of Practice - Disciplinary and grievance procedures [167kb]. If it's good enough for the Employment Judge that might end up hearing your case surely it's good enough for you?!


  • Posted by Karen Lumsdale  |  19 January 2017, 7:15AM

    Just re-reading some update emails - thanks for the information Damian, very useful!

  • Posted by Jane Beirne  |  26 July 2016, 5:32AM

    Useful guidelines. Thank you 

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