North West Employment Law - Specialist Employment Solicitors

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Drafting a Letter of Appeal

In my last blog I looked at drafting grievance letters. In this blog I will look at the next stage which is the drafting of letters for appeal hearings.

The decision to be appealed may be a decision in response to a grievance or it could be a disciplinary decision. It could be a decision to dismiss- either for a disciplinary reason or for some other reason- most commonly redundancy.

Although as I said in my last blog ACAS encourage an informal approach- the time for informality is now past. Only an appeal letter will do.

Most of what I said about how to draft grievance letters holds true for appeals. Enough detail for a stranger to understand what it is about but not too long and keep it relevant. I think it is even more important to use short numbered paragraphs in an appeal letter so that everyone is clear.

If the appeal is against a decision not to uphold a grievance- the parts of the grievance which are still relevant (perhaps all of it) should be repeated or restated. From there on all appeal letters should follow the same pattern.

You should state why you think the original decision was wrong (eg ‘It was not my oil rig- it belonged to Transocean’ or ‘I was only trying to help my friend pay for his flat’).

You should also say if you think there was anything wrong with the way the matter had been investigated or decided- if for example only witnesses against you were questioned and helpful witnesses were ignored or if you were not given enough credit for many years of good service.

If you think a previous hearing was not carried out properly you should include this in your appeal. Previous hearings could include grievance hearings, disciplinary hearings, redundancy consultations as well as hearings such as capability reviews. If you do not think evidence was properly considered or the correct weight was not put on it you should say so. Likewise if you do not agree with the minutes of the meeting or believe you made valid points which were ignored or relevant information was withheld- you should say so.

There is quite a bit of overlap between the factors discussed above. You might find yourself listing the same or similar points more than once in slightly different ways. THERE IS NOTHING WRONG WITH THIS.

One final point to bear in mind is that the idea of reasonableness stalks appeals and other hearings which lead up to them every bit as much as anywhere else. All that is expected of your employer is that they act as a reasonable employer- this means carrying out a reasonable investigation or enquiry and making a reasonable decision based on the information reasonably available. If your employer does this (or appears to) then their decision will be accepted by an employment tribunal no matter how wrong they may be or how right you may be.

Representation in Disciplinary, Dismissal, Grievance Hearings and Appeals

Often we are telephoned by people under threat of dismissal who ask if we will represent them at a disciplinary hearing a redundancy ‘consultation’ or at an appeal following dismissal. Sometimes we are asked to attend grievance hearings too. The answer has always been the same- ‘no’.

Our refusal is not because we are unwilling to attend but because the statutory rules are clear. An employee is only entitled to be accompanied or represented by a colleague, a trade union official or someone certified by a trade union as a qualified companion.

Sometimes an employer will allow a family member or friend to accompany someone at a meeting but this is a concession and not a right. Employers will never allow a solicitor to attend. Perhaps employers imagine that solicitors know something they do not and will be able to stop them reaching the result they were probably hoping for.

Now there are signs that the situation may be changing. In two recent cases the Court of Appeal has decided that it might be possible in some circumstances for someone working in the public sector to be accompanied by a lawyer at a disciplinary hearing.

In the second of these cases the Court of Appeal decided that if there was more than just the job at risk- if dismissal might prevent someone working in their career at all- then legal representation should be allowed.

Both cases are on their way to the Supreme Court for a final decision so watch this space. It is possible that the Supreme Court will suggest that the right exists whether or not a job is in the public sector or not and equally possible that the ‘right’ will disappear altogether.