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Independent appeal panels – who has the last word?

Some employers – particularly small businesses – prefer to outsource disciplinary appeals to independent panels. In the recent case of Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery), the Employment Appeal Tribunal considered whether the decision of such a panel was binding.

Miss Kisoka worked for Rydevale as a nursery practitioner from 2008. She was dismissed in August 2011, following allegations that she had started a fire at its premises. The evidence against her included CCTV recordings and her failure (in Rydevale’s opinion) to adequately explain her movements on the day.

Miss Kisoka appealed against her dismissal, and Rydevale arranged for an independent panel to consider the appeal. Although the panel found in Miss Kisoka’s favour, Rydevale decided not to follow its decision and upheld the initial decision to dismiss her.

The Employment Tribunal refused Miss Kisoka’s unfair dismissal claim. It held that Rydevale had reasonable grounds for concluding that she had committed gross misconduct, and had conducted a reasonable investigation. It also noted that there was no agreement that the panel’s decision would be binding.

The Employment Appeal Tribunal refused Miss Kisoka’s subsequent appeal. It held that it is not always possible for an employer to carry out all the steps listed in the ACAS Code of Practice on Disciplinary and Grievance Procedures, and noted that the Employment Tribunal had been entitled to take into account Rydevale’s size and resources when deciding the case.

This is an interesting case, given that an employee was fairly dismissed despite the employer (arguably) denying her the right to appeal. Although it is a fact-specific case (concerning a small employer and very serious misconduct) which does not set a general precedent, it serves as a reminder that Employment Tribunals do have a discretion to depart from the ACAS Code in appropriate circumstances.

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