The Respondent dismissed the Claimant for medical incapability after more than two years’ absence caused by various conditions including vertigo and vestibular migraines. The internal appeal against dismissal, intended to be a rehearing, was strikingly flawed. The nominated appeal manager declined to hear the appeal. His replacement did not attend the rescheduled hearing, leaving the Claimant and his union representative waiting on site. The HR business partner then placed the onus on the Claimant to choose the appeal manager and propose dates, without confirming this to him in writing. When the Claimant commenced Acas early conciliation – believing it to prevent continuation of his internal appeal – the Respondent did not clarify matters or check his intentions. The internal appeal never took place. The ET dismissed the Claimant’s complaint of unfair dismissal. It criticised the procedural failings at the appeal stage yet held the dismissal fair, reasoning briefly that the Claimant had been offered an appeal but did not pursue it. The Claimant appealed to the EAT.

The EAT allowed the appeal. The ET failed to apply the principle established in West Midlands Co Operative Society v Tipton [1986] ICR 192 (and subsequent authorities such as Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 and Mirab v Mentor Graphics (UK) Ltd UKEAT/0172/17) that a defective appeal process may render a dismissal unfair. The more striking the defects at the stage of an internal appeal, the more it is incumbent upon an ET to demonstrate in its decision why it has decided that a dismissal was, overall, fair. Given the severity of the defects, and absent any finding of futility, the only proper conclusion was that the dismissal was unfair. A finding of unfair dismissal was therefore substituted.