Flawed appeal process in a capability dismissal rendered the dismissal unfair

Recent case, Milrine v DHL Services Limited [2026] EA 31  acts as a reminder to employers to ensure a clear and fair process is followed in relation to appeals. Here, a flawed appeal process in a capability dismissal rendered the dismissal unfair.  

The facts  

The Claimant, Mr Milrine, had been a HGV driver since 2013. He was dismissed for medical incapability in June 2022 after being off sick for two years, caused by a number of health conditions including vertigo.

Mr Milrine appealed against his dismissal. There were a number of flaws with the appeal process:

• Firstly, the nominated appeal manager declined to hear the appeal. A replacement was appointed but they did not attend the rescheduled hearing. This meant Mr Milrine and his Trade Union representative were left on-site awaiting the hearing chair.
• The Respondent then requested Mr Milrine to choose an appeal manager and suggest a date for his appeal, but this request was not made in writing.
• The internal appeal did not take place.

Mr Milrine then made a claim for unfair dismissal.

The Employment Tribunal dismissed Mr Milrine’s claim of unfair dismissal, stating that he had been offered an opportunity to appeal but he did not pursue it.

Mr Milrine appealed the Employment Tribunal’s decision, contending that they had erred in their finding and that the standards of the internal appeal fell well below good industrial practice.

The judgment 

The Employment Appeal Tribunal found that Mr Milrine’s dismissal was unfair because of the flawed appeal process and given the severity of the defects, the only proper conclusion was that the dismissal was unfair.

The EAT restated some helpful points for employers to consider:

• Procedural unfairness at the appeal stage can render a dismissal unfair overall.
• When applying the statutory test, there needs to be an examination of the dismissal process as a whole, including the appeal stage.
• Having an appeal is important and a key component of fairness. This is also stated as a matter of good relations in the ACAS Code of Practice.
• Failure by an employer to offer an appeal or an appeal that is procedurally defective does not inevitably require a finding of unfair dismissal. It is one of many factors for a Tribunal to consider.
• An employer’s poor handling of the appeal process can on its own render a dismissal which would otherwise have been fair, unfair.

The case was remitted to the same Employment Tribunal so that remedy could be determined.

Key points for employers

Employers need to ensure that they follow a clear appeal process to ensure procedural fairness. This is stated in the ACAS Code of Practice and also helps to mitigate the risks of claims for unfair dismissal being brought. With changes under the Employment Rights Act 2025 being introduced in 2027, the qualifying period for unfair dismissal will decrease from two years of service to 6 months. meaning the volume of claims brought is set to increase.