01254 828 300 
The appellant, Mr Ernest Milrine, was a long-serving HGV driver who had been dismissed for incapability after more than two years’ absence from work due to medical conditions including vertigo and vestibular migraines. DHL Services Ltd dismissed him in June 2022 on capability grounds. The Claimant appealed internally, however due to procedural failings no internal appeal ever took place.
The original Employment Tribunal accepted that the appeal process had been “unsatisfactory”, but nonetheless held that, overall, the dismissal was within the range of reasonable responses and therefore fair.
On appeal to the Employment Appeal Tribunal (EAT), the focus was squarely on whether the flawed appeal process affected the fairness of the dismissal.
The EAT emphasised established authorities such as West Midlands Co-Operative Society v Tipton and later cases confirming that a defective internal appeal process can render an otherwise fair dismissal unfair.
The Tribunal underscored that an appeal against dismissal is an integral part of the overall disciplinary process: it is not a mere “box-ticking” formality but a procedural safeguard intended to ensure justice.
Given the striking defects in how Mr Milrine’s appeal was managed, and in the absence of any finding that pursuing the appeal would have been futile, the EAT held that the Employment Tribunal had erred in law in relegating those defects to a footnote while concluding that the dismissal was fair. Instead, the EAT substituted its own decision, finding that the dismissal was unfair because the procedural shortcomings at the appeal stage were so serious that they undermined the fairness of the entire dismissal process.
Although Mr Milrine’s claim also included allegations of disability discrimination and unpaid sums, his appeal to the EAT was confined to the fairness of the dismissal.
The judgment serves as a reminder to employers that procedural fairness must extend beyond the initial decision to dismiss and must encompass any internal appeal mechanism. If an employer fails to provide a genuine, properly conducted appeal, this failure can itself be decisive in an unfair dismissal claim, even where the underlying decision might otherwise have fallen within the range of reasonable responses.
If you need guidance on managing dismissals or avoiding unfair dismissal claims, get in touch with our employment team.
This article was written by Gabrielle Scriven.