The failure to hold an appeal hearing following the dismissal of an employee who had previously been suspended without pay and who had requested an appeal hearing contravened the statutory regime set out in the Employment Act 2002 Sch.2 para.3(1) rendering the dismissal automatically unfair.

The appellant employer (M) appealed against a tribunal decision that it had unfairly dismissed the respondent (W). M had been suspicious of the honesty of the reasons given by W for his absence from work and had suspended him without pay. W was recommended for dismissal and that recommendation had been upheld by M's disciplinary panel. M had notified W that he was entitled to appeal against his dismissal. W's contract stated that a statement of grounds was to be included in any notice of appeal. In the event, M refused to hear the appeal on the grounds of W's delay in presenting his ground of appeal. The tribunal found that M's dismissal of W had been procedurally flawed, in particular that it had not completed its investigation into W's behaviour and that the individual who had conducted the investigation had also presided at the disciplinary hearing, had led the dismissal process and that he had acted throughout with a closed mind. The tribunal also found that M's refusal to allow W to appeal rendered the dismissal automatically unfair by virtue of the Employment Rights Act 1996 s.98A. M submitted that (1) the tribunal had substituted its judgment for that of the employer; (2) on the issue of automatic unfair dismissal, the contract of employment predated the statutory procedures, there was an ambiguity in the provisions relating to the lodging of an appeal and that to construe the Employment Act 2002 Sch.2 para.3(1) as indicating that failure to allow the appeal to proceed constituted an automatic unfair dismissal would be absurd.

HELD: (1) The tribunal had not substituted its judgment for that of the employer. The tribunal had applied the correct test when considering the adequacy of the investigation, British Home Stores Ltd v Burchell (1980) ICR 303 EAT and Sainsbury's Supermarkets Ltd v Hitt (2002) EWCA Civ 1588, (2003) ICR 111 applied. The tribunal was entitled to reach the decision it did from the evidence. (2) Employment Act 2002 Sch.2 para.3(1) did not contain any ambiguity. If the employee wished to appeal, the employer must invite him to attend a further meeting. There was no requirement for this request to be expressed in writing or for grounds to be given; all that was necessary was for the information to be passed to the employer. Suspension without pay constituted relevant disciplinary action for the purposes of Sch.2 to the 2002 Act so that a failure to follow the statutory regime so as to allow the appeal to proceed amounted to an automatically unfair dismissal.

Appeal dismissed.