FAIR REASON, FLAWED PROCESS
Lessons from Milrine v DHL
The Employment Appeal Tribunal (EAT) has reinforced the importance of a properly conducted appeal in Milrine v DHL, holding that a dismissal which may otherwise have been fair was rendered unfair due to serious defects in the appeal process.
Mr Milrine, a HGV driver, was dismissed on the grounds of medical incapability after more than two years’ absence. He exercised his right of appeal. However, the nominated appeal manager declined to hear it, and their replacement failed to attend the scheduled hearing. DHL subsequently asked Mr Milrine and his representative to suggest an alternative manager and propose dates for a rearranged meeting, although this request was not put in writing. Ultimately, no internal appeal ever took place.
Mr Milrine brought a claim for unfair dismissal. The EAT held that the dismissal was unfair because of the flawed appeal process.
In reaching its decision, the EAT made a number of key points:
The appeal forms part of the overall dismissal process and must be considered when assessing fairness under section 98 of the Employment Rights Act 1996. The whole process must be examined.
A failure to offer an appeal, or a procedurally defective appeal, does not automatically make a dismissal unfair. It is one of the factors a tribunal must weigh.
However, an appeal does not need to be capable of curing an earlier defect or changing the outcome in order to be relevant to fairness. The appeal stage matters in its own right.
An employer’s poor handling of the appeal process can, on its own, render a dismissal unfair.
Where the defects are significant and unusual, a tribunal must clearly explain why a dismissal is still fair despite those flaws. The more striking the defects, the greater the need for careful judicial reasoning.
Leaving an employee confused, failing to manage the process proactively, or failing to confirm arrangements in writing falls well below good employment relations practice.
If dismissal would have occurred in any event but the process is procedurally unfair due to appeal defects, this impacts remedy rather than liability. The fairness assessment remains central, but compensation may be adjusted to reflect the likely outcome.
What does this mean for employers?
This decision is a clear reminder that the appeal stage is not a formality. Even where there is a potentially fair reason for dismissal, a poorly handled or incomplete appeal can undermine the entire process.
Employers should ensure appeal arrangements are clearly communicated, properly managed, and documented in writing. A defective appeal may not just weaken a case — it can determine the outcome.
