Staff Disciplinary, Capability and Dismissal Appeal Procedure
(Version effective from 2 July 2020)
1. Right of appeal and appeal procedure
1.1. An employee has the right of appeal against any formal disciplinary action taken. Appeals may be submitted on the following grounds:
- A failure to follow procedure which thereby led to an unjust outcome.
- The imposition of an inappropriate penalty considering the facts of the misconduct and mitigating circumstances.
- A perverse finding by the disciplinary manager.
- New evidence which was not available to the appellant at the disciplinary hearing has become available.
1.2 At all stages of this procedure, due consideration will be given to making adjustments to enable appellants to participate fully in meetings and hearings, particularly if they have a disability. This may include ensuring rooms are accessible , using remote software or arranging for an interpreter to be present, for example.
2. Appeal against formal verbal warning or formal written warning, or final written warning, or downgrading, or transfer to alternative employment.
2.1 In disciplinary cases involving the issue of a Formal Verbal Warning, or Formal Written Warning, or Final Written Warning, Downgrading or Transfer to Alternative Employment, the employee shall have the right to appeal to the next management level. Such an appeal must be lodged in writing with the Director of Human Resources and Organisational Development, within 14 days of the warning being notified in writing and should set out in full the grounds for the appeal. Every effort will be made to organise the appeal hearing as soon as possible. Human Resources and Organisational Development colleagues will keep all parties updated as necessary.
2.2 The notice of appeal should contain the names of any witnesses the employee or their representative wishes to call. The identity of all witnesses who may be called by management will be available to the employee or their representative. It is the responsibility of both the employee and management representative to arrange for their witnesses to attend the appeal hearing and provide them with any necessary documentation in preparing for the appeal hearing.
2.3 The employee shall have the right of appearing personally, either alone or accompanied/represented by a Trade Union representative (including a Full Time Officer), or a University colleague of their choice who are not otherwise involved in the proceedings.
2.4 The Appeal will be heard by the appropriate manager, who will not have previously been directly involved in the case, in the presence of:-
- The appellant and representative, if applicable.
- A representative from the management team
- A HR representative who will support the manager hearing the appeal.
2.5 The employee or their representative should be given at least 10 calendar days’ notice of the date of the appeal hearing. The Director of Human Resources and Organisational Development shall send a copy of each Statement and any other supporting documentation, to the Appellant and the management representative respectively and copies of both statements, to the members of the Appeal Panel, no later than 7 days before the appeal hearing, where possible.
2.6 At the end of the hearing, both sides shall have the opportunity to sum up their case. The employee, or their representative, shall have the right to speak last.
3. Appeals against dismissal
3.1 Appeals against dismissal, whether for reasons of conduct, capability/qualifications, redundancy, contravention of a duty or restriction imposed by or under an enactment, or ‘some other substantial reason’ will be considered in accordance with the following procedure. In every case of dismissal, the employee concerned will be advised of their right of appeal and referred to this document.
3.2 An appeal against dismissal shall be heard by a panel of three persons. The composition of the panel shall be as follows:
- a lay person, usually a lay member of a University Committee, who will Chair the Appeal.
- a manager who has not had any prior involvement in the case.
- a member, nominated by the appellant, who must be an employee of the University, who must not have been involved in the action which led to the appeal, and who may be a member of the union recognised by the University as appropriate to the appellant's employment.
The Appeal Panel shall be supported by a HR representative, who will act as adviser to the panel on points of procedure etc and take notes of the proceedings.
3.3 An employee who wishes to appeal against dismissal shall notify the Director of Human Resources and Organisational Development, in writing, of the intention to appeal and should include the appellant’s nominee to the Appeals Panel. This must be done within 21 days of receiving notice of dismissal.
3.4 Upon receipt of the notice of appeal, the Director of Human Resources and Organisational Development will make arrangements for the appeal to be heard by an Appeal Panel. The involvement of Lay Members of Council and Senior Managers, may result in timeframes being extended due to pre-existing commitments. All parties will be kept informed of progress and of any changes to timescales.
3.5 The Director of Human Resources and Organisational Development shall write to the Appellant and the responsible manager, requiring them to prepare and submit, no later than 14 days before the appeal hearing, their respective Statements of Case, including copies of any relevant documents, details of any new evidence relevant to the case and a list of any witnesses they wish to call in support of their respective cases.
3.6 When both statements have been received, the Director of Human Resources and Organisational Development shall send a copy of each Statement, to the Appellant and the management representative respectively and copies of both Statements, to the members of the Appeal Panel, no later than 10 days before the appeal hearing. Any late submissions of documents will be tabled at the hearing and it will be the discretion of the Chair of the Appeal Panel whether these should be considered at the hearing.
3.7 The Appellant and the management representative shall each have the right of appearance at the appeal hearing. In the event of an Appellant choosing not to attend the Appeal, or failing to attend, the Appeal Panel may hear the appeal in that person’s absence.
3.8 The Appellant may be accompanied by a current employee of the University , or a Trade Union representative. They will be allowed to address the appeal hearing in order to:
- Put the Appellant’s case
- Sum up the Appellant’s case
- Respond on the Appellant’s behalf where appropriate
- Confer with the Appellant during the hearing
- Question any witnesses appearing at the hearing.
3.9 At the discretion of the Appeal Panel, the Appellant and the management representative shall each have the right to call witnesses. It is the responsibility of both the Appellant and management representative to arrange for their witnesses to attend the appeal hearing and provide them with any necessary documentation in preparation for the appeal hearing.
3.10 If the Appeal Panel feels that a witness has been called unnecessarily, it shall ask the relevant person to explain the significance of the witness. If the Appeal Panel, on receipt of this additional information feels that the witness is not required, the witness will not be permitted to attend.
3.11 The Appeal Panel shall attempt to reach a unanimous decision, where this is not possible, a majority opinion shall be conclusive. The Panel may adjourn its proceedings, if necessary, but it shall make every effort to conclude its proceedings on the same day.
3.12 The Chair of the Appeal Panel shall advise all parties to the appeal of the Panel’s decision as soon as possible and the decision shall be confirmed in writing to the Appellant, within five days.
3.13 In the event that an individual’s dismissal is over-turned and they are reinstated with a warning, the warning will be deemed to run from the date of reinstatement.
4. Suggested Order for Conduct of Dismissal Appeal Hearings
The Chair of the Appeal Panel will have discretion to run the Hearing in the most appropriate way, dependent on the circumstances and grounds of appeal. It is envisaged that the majority of Hearings will follow the format outlined below. However, if the grounds of appeal are that the process followed was procedurally flawed, it may be appropriate to run the appeal hearing as a re-hearing of the case. The Chair of the Appeal Panel will open the hearing by introducing those present, outlining the grounds upon which the employee has appealed, explaining how the hearing will be conducted, explaining the roles of those attending and the possible outcomes. The Chair will inform parties that with their consent the appeal hearing will be recorded electronically, and a copy of the audio file will be provided to the Appellant on an encrypted device (e.g. USB stick). The hearing will normally be conducted as follows:
4.1 The Appellant, or their representative shall present the grounds of appeal introducing any new evidence and any witnesses.
4.2 The management representative and the Appeal Panel may ask questions of the Appellant, their representative and witnesses.
4.3 The management representative shall respond to the Appellant’s case and invite witnesses.
4.4 The Appellant, or their representative and the Appeal Panel, may ask questions of the management representative and witnesses.
4.5 The management representative shall sum up the University’s case.
4.6 The Appellant, or their representative, shall sum up the Appellant’s case.
4.7 Both sides shall withdraw until the Panel reaches a decision.
4.8 The Appeal Panel shall deliberate in private and shall be able to recall both parties to clear points of uncertainty on the evidence already given. If recall is necessary, both parties are to return, notwithstanding only one may be concerned with the point in question. The Panel deliberations will not be recorded.
4.9 The Appeal Panel has the following decisions available to it:
- to dismiss the appeal.
- to uphold the appeal and to reduce or remove the disciplinary penalty.
The Chair can also make recommendations to appropriate managers, if more general issues are highlighted by the investigation or hearing.
4.10 The Appeal Panel decision is final. The Chair of the Appeal Panel shall normally announce the Panel’s decision to the parties in person and confirm in writing, but where this is not practicable, the parties will be advised in writing, as soon as possible and within 5 days.
5. Monitoring and review
5.1 This policy and procedure will be monitored and reviewed every two years by the Director of Human Resources and Organisational Development and any necessary changes will be negotiated with the Joint Negotiation & Consultation Committee.