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Appeal

PREPARATION

Management Case

Should an employee raise an appeal against the decision reached at the disciplinary hearing then the Chair of the disciplinary panel will prepare and present the management case at the appeal hearing.

NHSGGC Disciplinary Policy & Procedure states that appeal hearings must be held within four weeks of receipt of the employees appeal therefore, it is imperative that the Disciplinary Panel Chair submits their management case timeously to facilitate the exchange of cases five days prior to the appeal hearing.  The Disciplinary Panel Chair needs to consider whether they wish to call any or all of the witnesses who attended the disciplinary hearing, to support the decision reached by the disciplinary panel. It is good practice to use the Investigating Officer to support this stage as they have all prior knowledge of the case.

Attendance at Appeal Hearing

The appeal hearing is conducted in the same manner as the disciplinary hearing with both parties presenting their case to the disciplinary appeal panel; management present their case first; opportunity for questions; employee responds to management case; opportunity for questions; closing statements then adjournment and finally announce decision.

Purpose of the Disciplinary Appeal

The Board’s Disciplinary Policy & Procedure is based on accepted good employee relations practice (namely the ACAS Code of Practice), current employment law, the principles of natural justice and NHS Scotland PIN Guidelines.

An important element of a fair and effective Disciplinary Procedure is that there is a mechanism for employees, when dissatisfied, to appeal against the disciplinary sanction taken against them.

The Appeals mechanism serves as a safety net, for both the organisation and employee, by providing an early opportunity to review the decision and where there are errors, for these to be rectified quickly.

The composition of the Disciplinary Appeals panel will be determined by the Scheme of Delegation as well as the level of sanction issued. For example, an appeal against a verbal or first level warning issued by a Service Manager, would be heard by a General Manager or Head of Service, accompanied by an HR adviser and an appropriate professional adviser (if required) neither of whom should have prior involvement or knowledge of the case. Appeals against dismissal however are always to the Board, in which case the panel is comprised of a Director, two Non- Executive Board members, a Head of People and Change/ People and Change Manager and an appropriate professional adviser (if required).

The purpose of the Appeal is to carry out an independent review as to the ‘reasonableness’ of the Disciplinary Panel Chair’s decision.  In considering reasonableness, the Appeal Panel will want to satisfy themselves on the following points:-

  • Was the manager's decision to take disciplinary action reasonable, based on the evidence relating to the case?
  • Was the disciplinary action decided upon reasonable, given the circumstances of the case?
  • Is the treatment of the employee consistent with the Board’s general approach to similar cases?
  • Has the matter been handled fairly and appropriately and is it consistent with the Board’s Disciplinary Procedure?
  • Has the manager been biased or prejudiced in any way when reaching the decision?
  • Is there any new evidence, which if known at the time would have altered the decision?
  • Particularly in cases of capability, has appropriate action been taken to try to assist the employee to maintain an acceptable standard prior to the disciplinary action being taken?

It is important that the appeal does not become another disciplinary hearing, but focuses on reviewing the decision that was taken and re-hears the relevant evidence to test this decision.

The Disciplinary Appeal Panel will normally have received a statement of case from both management and staff side.  It is important that the Panel considers each point raised by staff side in defence of its case.  If these are rejected, reasons need to be given in the follow up letter as to why they were rejected.

Decision

The burden of proof in Employment Law is different from that used in criminal cases.  The Employer is expected to justify their decision was correct on the balance of probabilities rather than beyond all reasonable doubt. 

There are three decisions which the Appeal Panel can come to:

  1. To dismiss the appeal and uphold the manager’s decision
  2. To uphold the appeal in part
  3. To uphold the appeal

If the Appeal Panel is not satisfied with the investigation or any other material aspect of what has gone before, it is for the Appeal Panel to remit the matter for further investigation and/or a new disciplinary hearing.  This may also be appropriate if new information is provided at the appeal, which, in the interests of fairness, should be investigated before a final decision is taken.

Decisions reached by a majority should be conveyed as the collective decision of the Appeal Panel.