Dismissal Appeal Conducted by an Independent Panel Not Always Binding on the Employer

Is an employer, who has outsourced its appeal process to an independent panel, always bound to implement the panel's decision?

Not necessarily. The recent case decided by the Employment Appeal Tribunal (EAT) shows that that an employer who had dismissed an employee for gross misconduct was not required to follow the decision of an independent panel, who had heard the employee's appeal and which overturned the employer's decision to dismiss. The fact that the employer did not implement the panel's decision did not render the dismissal unfair.

The claimant worked as a nursery practitioner until she was dismissed for gross misconduct based on the employer's belief that she had started a fire at the nursery. The employer had reviewed CCTV footage which it considered established that the claimant was the only person who could have been in the vicinity of the fire at the relevant time.

The claimant appealed the decision to dismiss her and the employer, for reasons relating to its size and consequent lack of managers, arranged for an independent panel to carry out the appeal against her dismissal. The panel overturned the employer’s decision to dismiss mainly because it felt that there was insufficient evidence to implicate the claimant as having started the fire. Needless to say that the employer was not happy with the panel's decision and decided not to implement it. The claimant brought a claim for unfair dismissal.

Paragraph 3 of the Acas Code states that the question of whether a particular course of action by the employer is reasonable or justified will depend on all the circumstances, and tribunals may take into account the size and resources of the employer.

Indeed, the EAT indicated that it was very relevant that the organisation employing the claimant is a small employer. It was also important that the original investigation conducted by the employer was reasonable and there were no explicit terms of engagement between the employer and the panel particularly with respect to how the panel's decision would be treated and whether the employer would have to implement the decision.

Whilst encouraging for employers, the EAT’s decision should not be seen as carte blanche for organisations to disregard such appeal decisions. Whilst it must be noted that there is no legal requirement for the employer to refer the dismissal appeal to an independent panel, each case should be assessed on its fact and in the case of Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery) UKEAT/0311/13, there were several findings of fact which assisted the employer. 

For further information please contact Jean Boyle by email or telephone 01225 326745.