An appeal is a second chance for you, not just for them
Most owners see an appeal as the employee having another go. It is more useful than that.
An appeal is the one opportunity you get to spot and fix a problem in your own process before anybody else looks at it. Tribunals will look at the process as a whole, and a properly run appeal can repair a flaw in the original decision.
So if something did go wrong first time round, the appeal is where you want to find that out. Not in a bundle eighteen months later.
Read the appeal letter looking for what they might be right about, not for what you can rebut.
Refusing an appeal is one of the worst things you can do
The right of appeal sits at the heart of a fair process under the ACAS Code. Refusing one, or ignoring the letter, is a procedural failure that is very hard to explain afterwards.
There is another cost. Where an employer unreasonably fails to follow the ACAS Code, a tribunal can increase compensation by up to 25%.
Even where you are certain the original decision was right, hearing the appeal is almost always the cheaper choice.
Who hears it matters more than what they decide
Wherever possible the appeal should be heard by someone who was not involved in the original decision, and ideally someone more senior.
In a small business that is often genuinely difficult. If there is only you, say so honestly and explain how you will approach it fairly. What you must not do is pretend to an independence that does not exist.
Where the decision was yours and there is nobody above you, bringing in an independent external person is the cleanest answer. That is one of the more common reasons owners call me.
Decide who will hear it before you reply to the letter. If it has to be you, be upfront about why.
How to run it
Acknowledge the appeal promptly and in writing, and set a date without unreasonable delay. There is no fixed statutory deadline, but dragging it out is itself a risk.
Tell them the right to be accompanied applies to the appeal hearing, by a colleague or a trade union representative, the same as the original.
Deal with the grounds they actually raised, point by point. An outcome letter that restates the original decision without engaging with their arguments reads exactly like what it is.
If new evidence appears during the appeal, give them a fair chance to comment on it before you decide.
And be genuinely open to changing your mind. An appeal that could never have succeeded is not an appeal.
What the outcome can be
You can uphold the original decision, overturn it, or substitute something less severe. All three are legitimate outcomes.
Reducing a dismissal to a final written warning is not a climbdown. It is often the commercially sensible answer, and it is far cheaper than defending a claim.
Confirm the outcome in writing with your reasons, and say clearly that this is the final stage of the internal process.
Before you send the outcome, ask yourself how the letter would read to someone who knows nothing about the situation. That is roughly the test.
“I got in touch about a difficult team issue I was feeling anxious and emotional about. From the very beginning Samantha was exceptional, reassuring, calm and compassionate, while also firm and clear when needed. Everything was explained in plain English with no jargon. The documentation, scripts and clear do's and don'ts she provided were invaluable. Without that level of support, the outcome could have been very different.”
Frequently asked questions
Do I have to offer an appeal?
In almost all cases yes. The right of appeal is a core part of a fair process under the ACAS Code, and refusing one is among the most damaging procedural failures at tribunal. Even where there is no strict duty, offering one is nearly always the safer commercial choice.
There is only me. Who hears the appeal?
In a very small business it may have to be you, and tribunals understand that. Be honest about it rather than pretending otherwise, and approach it with a genuinely open mind. Bringing in an independent external person is the cleaner answer where the decision was yours.
How long do I have to arrange it?
Without unreasonable delay. There is no fixed statutory deadline, but you should acknowledge it promptly and hold the hearing within a reasonable time. Letting it drift is itself a risk.
Can the outcome be worse for the employee?
Increasing a sanction on appeal is risky and generally best avoided unless your procedure expressly allows it. Take advice before doing it.
Key takeaways
- An appeal is your chance to fix a flawed process before a tribunal sees it
- Refusing an appeal is a serious procedural failure under the ACAS Code
- Unreasonable failure to follow the Code can add up to 25% to compensation
- Someone uninvolved should hear it wherever that is possible
- Reducing the original sanction on appeal is a legitimate and often sensible outcome
Not ready to book? Just tell me what's going on and I'll come back to you. No obligation.
