The Employment Appeal Tribunal had to decide whether an internal appeal hearing can put right an employer’s failure during the disciplinary procedure.

Derwich was summarily dismissed for gross misconduct after admitting to saving an image of a witch as a screensaver on her supervisor’s computer and making obscene gestures behind her back.  At a tribunal, the dismissal was found to be unfair for 3 procedural reasons: at the time of the disciplinary hearing, she did not know the full charges against her or that they amounted to gross misconduct; she had not been provided with all the witness statements collected; and she had been given insufficient time to prepare her case.

The EAT upheld the employer’s appeal stating that the key question when judging whether a dismissal is reasonable is whether the disciplinary process as a whole is fair – in other words, the dismissal and the appeal procedure combined.  This means that a procedural defect in an earlier disciplinary hearing can be remedied at the appeal stage.  The court confirmed it is not necessary to decide if the procedural defect was cured by a ‘review’ or a ‘rehearing’.

This case highlights the importance of ensuring that the procedure followed in any disciplinary is sound and follows the principles of the ACAS Code; however, any identified defects can be remedied at the appeal stage.