We work in an environment where staff can ‘take advantage’ of a generous staff purchase scheme. One of our staff took unfair advantage of the scheme to claim a refund for far more than the original purchase. We investigated thoroughly and held a disciplinary meeting which followed company procedures and the ACAS Code of Practice.
During the hearing she presented a letter in which she apologised and stated that she had made a mistake, but asked us to note her long service and punctuality. She was summarily dismissed, as we saw it as an act of fraud, and she was given 7 days to appeal. She did not do so on time, in fact it took two weeks for a letter to arrive and when we asked if there were a good reason for such a delay, she could not provide an answer. We therefore decided not to allow her to attend an appeal hearing.
Peter replies:
Your failure to provide an effective appeal is likely to be held by a Tribunal to be unreasonable and unfair, despite the conclusive allegations. It is common to put a deadline on receiving appeals, but especially having dismissed an employee it is wise to always hold any appeal if so requested, even with employees who have less that two years service, otherwise your actions will be deemed unfair.
Tribunals will look at the overall process, and even if you did the first stage i.e. dismissal properly then a procedural failure at a later stage can make the whole process unfair. The ACAS Code of Practice is silent on timescales, other than exhorting employers not to delay and their longer guidance booklet is also silent.
Definitive case law is not available, probably because most sensible employers just grin and bear it, i.e. get on and hear the appeal unless it is very late so that it would serve no practical purpose. Consider writing into the disciplinary procedure that an appeal request that comes in very late will be dealt with through an exchange of communication thus saving you from having to undertake a full appeal meeting.
I would therefore advise you to seek to convene an appeal meeting if at all possible. If it is too late and the ex-employee is determined to go to tribunal then all is not lost, as you will have the opportunity to argue that even though the dismissal was procedurally unfair, that there would have been a 100 per cent chance of the dismissal still occurring anyway because of her contributory conduct. If your case is presented well enough, there is a very good chance that her compensatory and basic awards will be reduced in their entirety i.e. by 100%. It is not unusual for tribunal to reduce awards by 50% as that makes it difficult for either part to appeal to the Employment Appeal Tribunal. 100% reductions do happen and if you investigated the matter properly, held a rigorous disciplinary meeting, gained something like an admission of guilt and considered her mitigation then you will be on reasonably strong ground to rescue the situation to some degree.
If you cannot get her to an appeal meeting then you should explore the options of an ACAS agreement known as a COT3, or a Settlement Agreement for a modest amount.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
