Sometimes, the legal requirement to ‘tick’ procedural boxes can seem like an unnecessary and frustrating headache. However, the recent case of Milrine v DHL provides a timely reminder of the importance of employers getting their processes right.

The facts

Mr Milrine worked for DHL (the logistics and shipping company) as an HGV driver.  As a result of various medical conditions (including vertigo and migraines), Mr Milrine became unfit to work and was absent for more than two years, from January 2020 until June 2022, when he was dismissed by reason of medical incapability.  At the time of his dismissal, Mr Milrine accepted that there was nothing more DHL could do to help him return to work.  He acknowledged that he was simply not fit to do so.  His manager concluded that the situation could not go on and that there was no prospect of him returning to his duties in the foreseeable future.  It was on this basis that Mr Milrine was dismissed.  

Mr Milrine had concerns about his line manager’s authority to dismiss him and decided to appeal.  In accordance with the terms of his dismissal letter, Mr Milrine submitted his appeal to the site manager, Mr Forbes.  However, Mr Forbes refused to conduct the appeal hearing.  An alternative appeal chair was appointed, but attempts to arrange an appeal meeting proved unsuccessful because of the unavailability of, firstly, a trade union representative and subsequently the appeal chair himself.  These unsuccessful attempts to conduct the appeal hearing resulted in significant confusion. The company purported to invite Mr Milrine to confirm whom he wished to hear his appeal and when he wanted the meeting to take place.  However, when he subsequently commenced the Acas early conciliation process, the appeal process was pursued no further.  Instead, Mr Milrine proceeded with a claim for unfair dismissal in the Employment Tribunal.

The decision

When the case was heard by the Employment Tribunal, the judge criticised DHL’s failure to conduct a proper appeal meeting.  However, ultimately, the dismissal was found to be fair.  Mr Milrine appealed to the Employment Appeal Tribunal.  

The EAT reached a rather different conclusion, replacing the ET’s judgment with a finding that the dismissal was unfair.  The EAT acknowledged that a faulty appeals process will not inevitably result in an unfair dismissal.  However, given the circumstances of this particular case, the ET had failed adequately to explain why, notwithstanding the problems with the internal appeals process, the dismissal was nevertheless fair.  Insofar as the ET concluded that the problems with the appeals process could effectively be disregarded (i.e. because the original decision to dismiss was obviously fair and would inevitably have been upheld), this was wrong.  Instead, the ET should have found the dismissal to be unfair, but DHL would have been given the opportunity to argue that compensation should be reduced accordingly.

Don’t trip yourself up!

Given the potential strength of the original decision to dismiss, there is the distinct prospect that had the appeal been handled better, a successful unfair dismissal claim (or indeed any unfair dismissal claim at all) could have been avoided.  Sometimes, the stronger the case for dismissal, the more an employer can see the process as being somewhat pointless.  However, the alternative way of looking at it is to say that if you have such a strong case for dismissal, why would you want to unnecessarily trip yourself up by scrimping on the process?

Whatever the circumstances, if you are grappling with a thorny procedural issue and need a helping hand, please get in touch.