Can an Internal Appeal ‘Cure’ a Failure in a Disciplinary Hearing?

Aug 13, 2015

Yes held the Employment Appeal Tribunal (EAT) in Biggin Hill Airport v Derwich.

In this case the employer had failed to provide the employee with all of the evidence against them prior to a disciplinary hearing as required by the ACAS Code of Practice.

When being made of this defect as a part of the internal appeal the employer ensured that all relevant evidence was sent to the employee 6 days prior to the appeal hearing.

The question for the EAT was whether this subsequent correction at appeal was sufficient to make the subsequent dismissal fair?

The EAT held that when considering a disciplinary process a tribunal should consider the process as a whole to assess whether it was fair.  In these circumstances the employee had received all of the evidence during the process, had at least 6 days to consider all of the evidence and respond and was aware of the potential consequences if she was found guilty of misconduct.

This case emphasises the important of ensuring that employees do receive all of the evidence against them as a part of a disciplinary process but is good news for employers in that if they get things wrong procedurally the first time round the appeal process does allow them opportunity to correct any errors.

If you are involved in a disciplinary process as an employer or an employee please do contact Gary Smith on 01279 712576 or via email at to discuss further.

Gary Smith

About the author

Gary Smith

Gary joined Nockolds in 2007 and is a Partner in our Employment Law Team. Before joining the firm Gary studied law at the University of Kent. ...

View Profile »

« Back

No articles available