Procedural failings in the running of an internal appeal to dismissal meant that the decision to dismiss was unfair.

The claimant was employed as a heavy goods vehicle driver by the respondent.  The claimant suffered from medical conditions causing absence for two years.  As a result, the respondent dismissed him on medical grounds.  The claimant appealed against the dismissal internally.
The appeal manager from the respondent declined to hear it and the replacement failed to attend the rescheduled hearing and there was poor communication regarding a further rescheduling. The claimant went through the ACAS early conciliation process which he believed, in error, meant that the internal process could not continue.  The claimant subsequently brought unfair dismissal proceedings.

At first instance, the Tribunal held that while the internal appeal had not been managed according to best practice, the claimant did have an opportunity to appeal and he elected not to pursue it due to the early conciliation.  The case was, as a result, dismissed with the Tribunal finding that the decision to dismiss was within the band of reasonable responses.  The claimant appealed to the EAT.
The EAT outlined that Section 98 of the Employment Rights Act 1996 required an examination of the process as a whole including the internal appeal stage.   They stated that an appeal which was procedurally defective could render a dismissal unfair. However, the failure to offer the appeal or an appeal which was procedurally defective would not automatically require a finding of unfair dismissal.  This demonstrates a difference in the law in Great Britain and Northern Ireland where the appeal would have to be offered in Northern Ireland in compliance with the statutory procedure. 
The requirement was to consider the practical consequences and whether the procedural failings made little or no difference to the outcome. In this case, the procedural defects were substantial and the greater the defects then it the Tribunal had to demonstrate why it would decide that a dismissal was still fair.   The analysis at first instance was insufficient in this regard.  

This case does demonstrate a difference between the law in Great Britain and Northern Ireland where the statutory process in dismissal requires that the appeal is offered.  The appeal was offered here but there were serious defects in the process and the requirement was for the Tribunal to examine the whole process and where the defects were significant to demonstrate why they had no or little outcome. The point for employers is ensuring that the communication is clear and that the process for appeals is robust.