For HR professionals managing performance or conduct issues, it’s easy to view the appeal stage as a formality – a box to tick once the ‘real’ decision has been made. A recent Employment Appeal Tribunal decision is a sharp reminder that getting the appeal process wrong can unravel an otherwise fair dismissal.

The lesson from Milrine v DHL

Mr Milrine, a long-serving HGV driver, was dismissed on capability grounds after more than two years’ sickness absence. On the face of it, this was a scenario many employers will recognise: prolonged absence, medical evidence, and a business need to bring matters to a close.

The problem arose after dismissal.

Mr Milrine appealed. The appointed appeal manager declined to hear it. Their replacement failed to attend the scheduled hearing. Although the employer later asked Mr Milrine and his representative to propose an alternative appeal manager and dates (never formally confirmed in writing), no appeal hearing ever took place.

The EAT held the dismissal was unfair – not because the capability decision itself was necessarily wrong, but because of the employer’s defective handling of the appeal.

Crucially, the tribunal confirmed:

  • The appeal is part of the overall process in any dismissal and is therefore relevant to the employment tribunal’s determination of fairness.
  • A failure by an employer to offer an appeal, or an appeal that is procedurally defective, does not inevitably require a finding of unfair dismissal. It is simply one of many factors for the tribunal to consider.
  • An internal appeal is not only relevant to fairness where it is capable of curing an earlier defect or otherwise making a difference to the outcome.
  • Poor appeal handling alone can render an otherwise fair dismissal unfair
  • Where dismissal would likely have happened anyway, appeal failures may affect compensation but will not impact on liability – the employer will still lose the unfair dismissal claim

What the Acas Code expects

The Acas Code of Practice on Disciplinary and Grievance Procedures is clear:

  • Employees should be informed of their right to appeal any formal disciplinary or dismissal decision
  • Appeals should be heard without unreasonable delay
  • Where possible, the appeal should be heard by someone not previously involved
  • The outcome should be confirmed in writing

These are not mere guidelines. Tribunals take them seriously.

The financial sting: the Acas uplift

Where an employer unreasonably fails to follow the Acas Code, tribunals can increase compensation by up to 25%.

In practical terms, a poorly handled or abandoned appeal can:

  • Turn a defensible dismissal into an unfair one
  • Significantly increase compensation exposure
  • Undermine confidence in internal procedures

Other key cases

Milrine sits alongside earlier authorities such as Tarbuck v Sainsbury’s Supermarkets Ltd which confirmed that defects in an appeal are not only relevant where a properly conducted appeal process may have made a difference to the outcome. A failure on appeal can sink an otherwise fair dismissal even if, had it been carried out properly, the outcome would still have been dismissal.

However, other case authorities make it clear that the absence of an appeal will not automatically result in an unfair dismissal. In Moore v Phoenix Product Development, the employer’s founder and former chief executive was dismissed without a right of appeal following a breakdown in the working relationship. The lack of an appeal did not render the dismissal unfair. The EAT considered that, in the circumstances of the case as a whole, an appeal would have been futile.

Practical takeaways for HR

To protect both fairness and risk:

  • Always offer a genuine right of appeal
  • Appoint an independent appeal manager wherever possible
  • Arrange the hearing promptly – and actually hold it
  • Confirm arrangements and outcomes in writing
  • Treat appeals as a real opportunity to review, not a rubber stamp
  • If you take a decision not to conduct an appeal then make sure that you clearly document your reasons. If an appeal is not being held then the fairness of the initial decision takes centre stage.

Dismissal decisions are rarely judged in isolation. Tribunals look at the whole journey – and the appeal is often the final, critical chapter.

As Milrine shows, forgetting (or mishandling) the appeal process can be the difference between a lawful exit and an unfair dismissal.