Mr Milrine was employed as an HGV driver for DHL Services Limited from 14 October 2013.

Mr Milrine had been absent from work for more than two years due to suffering from vertigo and vestibular migraines. On 3 June 2022, DHL Services Limited dismissed Mr Milrine on the  grounds of medical incapability.

Mr Milrine appealed against this decision however, there were numerous flaws in the appeal process. Firstly, the allocated appeal manager had declined to hear Mr Milrine’s appeal. A replacement appeal manager, then failed to turn up to the appeal hearing. 

The Human Resources business partner then verbally asked Mr Milrine to select another manager and to suggest some alternative dates to hear the appeal, however, this was not put in writing. No internal appeal was ever held and as a result, Mr Milrine issued an unfair dismissal claim.

Although the Employment Tribunal had originally criticised the procedural flaws in the appeal, they dismissed Mr Milrine’s unfair dismissal claim.

Mr Milrine then appealed to the Employment Appeal Tribunal (EAT), who agreed with Mr Milrine and allowed the appeal. It held that the dismissal was unfair due to the defective appeal. 

The Judge stated that the statutory test of whether a dismissal was fair requires the whole process, including appeal, to be examined. The Judge went on to state that the failure to offer an appeal or a defective appeal procedure would not automatically amount to an unfair dismissal, but it would be one of the many factors taken into account and that even when the original decision to dismiss was reasonable, the overall dismissal can still be found to be unfair. The fact that arrangements were not confirmed in writing, goes against best practice and left the employee feeling confused, in a poorly managed process.

This case reminds employers that they must ensure that a fair procedure has been followed throughout, including the appeal process. Even where a dismissal is justified, employers must handle each stage of the process carefully, in order to avoid rendering the dismissal unfair. 

For more advice, please contact our Employment Team.