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Where an Industrial Tribunal is considering a complaint of unfair dismissal involving an internal appeal process the Tribunal should have regard to the overall process of the termination of the contract of employment in deciding whether the dismissal was unfair. This cannot be decided simply on the basis of pigeon-holing the type of appeal (a review of the case or a re-hearing) to decide whether the appeal process corrected unfairness at an earlier stage.
This was an appeal against a decision of the Industrial Tribunal which unanimously dismissed Mr Adivihalli's complaint of unfair dismissal and of discrimination on racial grounds. He argued that the first stage decision to dismiss him was unfair, and this was not corrected by either of his appeals, the first to a senior manager and the second to the Civil Service Appeal Board (CSAB).
The IT decided that the initial decision to dismiss was unfair but the first appeal did correct the procedural defect of the first decision to dismiss. Even if it had not done so, the CSAB was an independent body and had conducted a full and fair rehearing and so would have corrected any flaw in procedure.
The appeal to the Employment Appeal Tribunal questioned whether the Industrial Tribunal were entitled, as a matter of law, to reach this conclusion. It was argued that the first stage appeal was more of a review, rather than a rehearing, of the previous decision and therefore the procedural defect could not be cured.
The CSAB proceedings also failed to cure the initial defect. There was a distinction between the two types of appellate process; whether it was (a) a rehearing, or (b) a review of what had already occurred, with further opportunities to make representations. A review was not capable of curing a procedural defect and therefore the Tribunal should have questioned whether there was a genuine rehearing.
However, the EAT said that the time had come to reassert the need for ITs to have regard to the statutory language. The EAT referred to the case of Whitword & Co Plc v Mills [1998] ICR 776 where there was a review of a large number of authorities.
What the present EAT took from Whitword decision was that where an employee has exercised a contractual right of appeal against dismissal the IT should have regard to the overall process of the termination of the contract of employment in deciding whether it was fair or not.
In some circumstances unfairness at the original stage may be corrected or cured as a result of what happens at the appeal process. Whether or not an appeal cures a procedural defect is not simply a matter to be determined by reference to the precise category into which an appeal process falls, ie. whether it is a review or a rehearing.
The EAT said that often it would be difficult to categorise an appeal process as being either a rehearing on one hand or a review on the other. There may be a mixture of the two.
Whether the procedural defect which had been identified by the IT was corrected by the appeal process was purely a question of fact and judgment for the tribunal looking at the overall process. It was not simply a question of deciding fairness or unfairness purely by categorising the type of appeal process.