Unfairly dismissed: the right to appeal

Asda has lost a case for unfair dismissal because it made one fatal procedural error. Where did it go wrong and what steps must you never overlook when disciplinary action is taken against an employee?

Like most larger employers, Asda almost certainly had the in-house HR expertise. With all this knowledge at its fingertips, you wouldn’t expect Asda to make such a fatal error when carrying out disciplinary procedure. However, this is precisely what happens when they dismissed Manjula Raj (R).

R began working for Asda in 2013 and was entitled to discount. On 15 October 2016, R used her staff discount to buy an electric toothbrush. On 23 November 2016, she returned the item and told the customer service desk employee that she’d forgotten how much it had cost and had lost the receipt. On this occasion, R did not present her discount card. Her colleague gave her a £35 refund in the form of a gift card.

Shortly afterwards, R brought a loaf of bread from the same customer service desk colleague. This time she produced her staff discount card and obtained a 10% discount, both transactions were captured on the instore CCTV. R was later called into an investigatory meeting and asked to explain why she had accepted a £35 refund on a toothbrush when it had actually been purchased for £13.50, and why R had not produced her staff discount for the refund transaction. She put the first down to a mistake and the second down to forgetfulness on her part.

Gross misconduct

Asda wasn’t convinced and commenced disciplinary proceedings. This resulted in R’s dismissal for gross misconduct on the basis that R misused her staff discount card and obtained a larger refund, in a deliberate attempt to defraud the company. R claimed unfair dismissal. The tribunal looked at the facts and determined that the allegations against R were conclusive. Despite their findings, it ruled R had been unfairly dismissed. What went wrong?

Refusing an appeal

Asda didn’t offer R a Right of Appeal. The judge noted that if the correct procedure had been followed, i.e. the right of appeal was offered at the point R was informed of the dismissal decision, her dismissal would have been fair. There is some good news for Asda – although R won her case, the award was reduced to nil as the tribunal found her conduct contributed to her dismissal (but there was both a cost of money and time bringing this case to ET).

Suggestions

Whenever a disciplinary sanction is imposed, you must offer the employee the Right of Appeal, this step is mandatory. ACAS guidance states that five working days is considered appropriate for an employee to lodge an appeal, but this may be extended in certain circumstances. The timeframe should be clearly stated in your disciplinary procedure and decision letter. If the employee lodges an appeal out of time you can reject it.