Ernest Milrine v DHL Services Limited

Under section 98 of the Employment Rights Act 1996, fairness requires assessment of the whole dismissal process, including any internal appeal. A failure to offer an appeal, or serious procedural defects in an appeal, may render an otherwise substantively fair dismissal unfair. It is not necessary to show that a proper appeal would have changed the outcome.

An appeal defect does not automatically determine liability. The tribunal must assess all the circumstances, including whether an appeal would have been futile. Where an employer’s appeal failings are especially striking, the tribunal must explain clearly why the dismissal was nevertheless fair overall. If a proper procedure would probably have produced the same dismissal, that normally concerns compensation rather than liability.

The claimant, an HGV driver, was dismissed for medical incapability after more than two years’ absence caused by vertigo, vestibular migraines and related symptoms. He appealed internally, challenging the time allowed to assess treatment and the authority of the manager who dismissed him.

The respondent’s intended rehearing never occurred. The original appeal manager declined to hear it. A replacement did not attend the rescheduled hearing. HR then left the claimant to select an appeal manager and propose a date, without written confirmation. The claimant began Acas early conciliation believing that this prevented the internal appeal from continuing.

The Employment Tribunal dismissed the unfair-dismissal claim. Although it criticised the appeal arrangements, it held that the claimant had been offered an appeal which he did not pursue. The claimant appealed on the ground that those defects had not been properly assessed as part of overall fairness.

1. Appeal allowed. The Employment Tribunal erred in law by failing properly to assess the defective internal appeal as part of the overall fairness of the dismissal under section 98 of the Employment Rights Act 1996.

2. The statutory inquiry concerns the dismissal process as a whole. An internal appeal is ordinarily an important component of a fair procedure. A denied or procedurally defective appeal may render unfair a dismissal which was fair when initially made. The employee need not show that a proper appeal would have identified an earlier error or changed the substantive outcome.

3. That principle does not make every appeal defect decisive. The absence or failure of an appeal is one factor in the statutory assessment. A tribunal may conclude, on the particular facts, that an appeal would have been futile. If the employer acted unreasonably in the appeal process but a proper appeal would probably have made little or no difference, that question generally affects remedy under the Polkey principle rather than liability.

4. Here, the ET identified serious failings but gave no adequate explanation for treating the dismissal as fair overall. The respondent allowed a manager to decline the appeal, failed to conduct the arranged hearing, left the claimant to organise the replacement arrangements, and did not confirm those arrangements in writing or clarify his intentions after Acas early conciliation began. The claimant had not positively abandoned his appeal, and the ET made no finding that an appeal would have been futile.

5. The more striking the defects in an internal appeal, the more an ET must demonstrate why the dismissal nevertheless fell within the range of reasonable responses. On the findings made, the respondent’s approach to the appeal placed the dismissal outside that range. The EAT therefore substituted a finding that the claimant had been unfairly dismissed. Remedy was left for agreement, failing which remittal to the same ET.

• Employment Appeal Tribunal: allowed the appeal and substituted a finding of unfair dismissal: [2026] EAT 31.
• Employment Tribunal: dismissed the claimant’s complaints, including unfair dismissal. The EAT set aside that conclusion on unfair dismissal.