When dealing with performance or conduct issues, it can be tempting to see the appeal stage as a final formality – something to complete once the real decision has already been made.
The decision in Milrine v DHL shows why that approach is risky. Even a dismissal that appears fair can be overturned if the appeal is mishandled.
Milrine v DHL
InMilrine v DHL, Mr Milrine was a long-serving HGV driver employed by DHL. After more than two years of sickness absence, supported by medical evidence and clear business pressures, he was dismissed on capability grounds. On the face of it, this was a familiar and often defensible situation.
The real problem arose after the dismissal.
Mr Milrine exercised his right of appeal. The first appeal manager declined to hear it. A replacement was appointed but failed to attend the arranged hearing. Although the employer later asked Mr Milrine and his representative to suggest alternative managers and dates, nothing was formally confirmed in writing and, ultimately, no appeal hearing ever took place.
The Employment Appeal Tribunal found the dismissal unfair
Importantly, this was not because the original decision to dismiss was necessarily wrong. It was because the appeal process had been badly handled.
The EAT confirmed several key points:
- An appeal is part of the overall dismissal process and must be considered when assessing fairness.
- A flawed or missing appeal does not automatically make a dismissal unfair, but it is an important factor.
- Poor handling of the appeal alone can be enough to make an otherwise fair dismissal unfair.
- Even if the employee would probably have been dismissed anyway, failures at appeal stage can still result in liability, although compensation may be adjusted.
The decision also reflects the standards set out in the Acas Code of Practice. Employers are expected to offer a genuine right of appeal, arrange it without unreasonable delay, ensure it is heard by someone independent where possible, and confirm the outcome in writing. Tribunals take these requirements seriously and may increase compensation by up to 25% if the Code is not followed.
HR takeaway
Fairness is judged across the whole process, not just the initial decision. An appeal is not a rubber stamp. It is a vital safeguard.
If the appeal stage is allowed to drift, fall apart, or become disorganised, it can turn a defensible dismissal into an unfair one – with costly consequences for the employer.
Further reading
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