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Managing Performance – Stage 3

 

Purpose of the appeals process

An employee, who is dismissed under the Managing Performance procedure at Stage 3 following a performance capability hearing, has the right of appeal against the dismissal decision.

The appeal is not a rehearing of the original case but an opportunity for the employee to highlight to an independent manager, with the power to make an alternative decision, why they believe the outcome of the performance capability hearing was unfair or incorrect.

Appeals should be dealt with timeously.

 

Grounds for appeal

An employee can appeal against a dismissal decision where they consider that the decision to dismiss was in some way unfair or incorrect, where new and relevant information comes to light that was not available at the time of the performance capability hearing or where there have been significant defects in the procedure that has been followed which have disadvantaged the employee.

 

Registering an appeal

In addition to the above, an appeal must satisfy the following conditions to be considered competent:

  • It must be in writing outlining the grounds for appeal – it is insufficient for the employee just to state that they wish to appeal without setting out their grounds.
  • It must be made within the timescale set out in the notification letter.
  • It must be submitted to the officer stated within the notification letter.

You who took the decision to dismiss should receive a copy of the written appeal and informed that they will be required to attend the appeal hearing to explain the basis of their dismissal decision.

 

Who hears the appeal?

The employee has 2 options:

  1. The employee can choose to have their appeal heard by a senior manager who has had no prior involvement in the case.  The chair of the appeal should be a more senior manager than the one who took the decision to dismiss at the performance capability hearing. 
  2. Alternatively the employee may wish to have their appeal heard by the Appeals by Employees Committee (or equivalent in the case of chief officers).  In this case, the appropriate elected members would hear the appeal, with normal committee procedures followed in respect of the appeal hearing.

 

When should the appeal be heard?

Where the appeal is being heard by a senior manager rather than by the Appeals by Employees Committee, you appointed to hear the appeal should contact the employee in writing with the appeal arrangements as soon as possible.

 

Who should attend the appeal hearing?

Where the appeal is being heard by a senior manager, the following will attend:

  • The senior manager chairing the appeal hearing
  • You who took the decision to dismiss
  • An HR Adviser to provide procedural advice and guidance
  • The employee
  • The employee’s companion if they wish to be accompanied. This should either be a work colleague or trade union representative, but not a spouse, partner or legal representative.

 

Conducting the appeal hearing

The appeal should be conducted as follows:

The chair should hold the hearing in as private a location as possible and ensure that there are no interruptions e.g. phone calls, maintenance work. The chair should identify a separate room in case adjournments are necessary and arrange for water to be made available in both rooms.

It is recommended that the employee is given at least 5 working days’ notice, in writing, of the appeal hearing.  The invite letter to the hearing can be found below:

Invite to capability hearing letter

 

Factors to consider before reaching a decision

In arriving at a fair and reasonable decision, the chair should:

  • Be prepared to overturn the previous decision of dismissal if it becomes apparent that it was not soundly based – such an outcome does not undermine authority but rather demonstrates the independent nature of the appeal.
  • Listen carefully to both sides of the case and make a judgement as objectively as possible.
  • Be satisfied that no unfair bias or prejudice affected the original decision.
  • Consider whether any procedural deficiencies may have unfairly affected the outcome and disadvantaged the employee, where the employee raises this as part of the appeal.
  • Consider whether any issues raised by the employee were properly considered by you who took the decision to dismiss.

Pay particular attention to any new matters that have come to light, whether this would have affected the outcome of the hearing and whether the employee had the opportunity to raise these matters at the hearing. The chair should ensure that you who took the decision to dismiss is given an opportunity to comment on these points.

You must provide the outcome of the appeal to the employee in writing.  The template letter can be found below:

Outcome of appeal letter

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