Appeal Against Gross Misconduct Dismissal – Why It Is Important

Appealing against gross misconduct is not only about reinstatement — it also protects your unfair dismissal claim. You may have lost trust in your employer and not want your job back, but be wise: appeal to underpin your claim and establish full liability on the employer.

In this article, you will learn how to use the appeal process to protect the grounds of your unfair dismissal claim. Not appealing can sink an otherwise well-founded case, particularly if you rely on procedural unfairness. If the tribunal finds that an appeal would have cured the unfairness but you did not appeal, a large portion of liability may be attributed to you.

Appeal Against Gross Misconduct Dismissal — Two Things Most Employees Miss

If you want your job back: There’s a common belief online that the employer must always reopen the investigation at appeal. Not so. The employer doesn’t always have to reopen the whole investigation on appeal — particularly where you admit the conduct but allege unfairness under s.98(4) ERA 1996.

It matters because, if you bring a tribunal claim and your only argument post-appeal is that a new investigation was not conducted, you will very likely lose on the Taylor approach (explained below).

If you don’t want your job back: You may be tempted to skip the appeal. Wrong — you should still appeal. Skipping it can wreck liability arguments and slash compensation. If you admitted misconduct, didn’t appeal, and brought a tribunal claim purely on unreasonable responses under s.98(4), the tribunal may find that a proper appeal would have fixed those issues — leaving you exposed to a heavy Polkey reduction and an Acas adjustment.

Do employers need to re-investigate at appeal?

What the law says

Taylor v OCS Group Ltd (CA) confirms the “whole-process” approach: tribunals judge fairness across the disciplinary + appeal, not just the first hearing. Moreover, there’s no rule that only a full rehearing can cure earlier flaws; a thorough, open-minded appeal can also fix them under s.98(4) ERA. D’Silva v MMU (EAT) takes a similar, practical view of process and fairness.

📌 Two principles

• If the investigation itself was flawed and your case hangs on Burchell (genuine belief + reasonable investigation + reasonable grounds), push for a reopened investigation at appeal (e.g., missing witnesses, inconsistent evidence, bias, documents not put).

• If misconduct is admitted, your argument shifts to s.98(4) reasonable responses: sanction, consistency, mitigation, policy application. In that lane, a full reinvestigation isn’t the point; what matters is whether the appeal review properly cured the earlier procedural defects. The fact they didn’t reinvestigate won’t win it if conduct is not disputed.

📌 Practical tips — match the appeal to your theory

• Burchell case? Ask to reopen specific investigative steps that could change the outcome.

• s.98(4) case? Demand a fresh, open-minded review of sanction and fairness (alternatives, consistency, proportionality) with reasons.

  
  

Why appealing really matters

What the law says

A. No appeal → Polkey risk (up to 100%)If you don’t appeal and bring a s.98(4) claim, the tribunal asks a Polkey question: would a proper appeal have cured the defect and still led to dismissal? If yes, compensation can be reduced to nil (Polkey up to 100%), and an Acas reduction (up to 25%) may also apply if skipping the appeal was unreasonable.

B. Appeal, but it cures the defects (Taylor context) → dismissal upheldIf you do appeal and the appeal is thorough/open-minded and reaches the same dismissal, the tribunal can find the dismissal fair on liability under s.98(4) (the Taylor “whole-process” approach). Result: claim fails.

C. Appeal exposes s.98(4) failure → full (or near-full) compensation ✅If you appeal and show that a reasonable employer would not have dismissed — e.g., alternatives weren’t considered, sanction disproportionate, conduct not truly “gross,” comparators treated more leniently, mitigation ignored — then the dismissal is unfair on liability. Because a proper appeal would have avoided dismissal, there’s no Polkey deduction (or only minimal sums for timing), and you may also seek an Acas uplift (up to 25%) for employer breaches.

Takeaway: Appealing creates the only path to outcome C, which is where the value is: you prove s.98(4) failed entirely and protect the award from Polkey. Without an appeal, you live in outcome A; with a weak appeal, you risk B. Aim for C.

📌 Practical tip

Always appeal. Even a short, targeted appeal preserves your position on fairness, reduces Polkey risk, and avoids Acas reductions.

Putting it together: how to argue it (when conduct is admitted)

Make sanction the battleground

• Proportionality: Explain why dismissal was excessive in your circumstances.

• Alternatives: Identify workable options (final warning, demotion/transfer, training, supervision plan, last-chance agreement) and say why they would have met the aims of discipline (standards, deterrence, trust).

• Consistency: Point to comparator outcomes or ask the employer to disclose them; require reasons for any differences.

• Mitigation: Length of service, clean record, remorse/insight, context (stress, workload, supervision issues), low risk of recurrence.

• Policy-fit: Show where the decision departs from the disciplinary policy or sanctions matrix without principled reasons.

Use the outcome letter as your lever

• If it’s silent on alternatives, argue they weren’t considered.

• If it mentions alternatives, test for policy inconsistency, irrational reasons, or failure to weigh mitigation.

• Ask for a reasoned appeal outcome addressing each point above.

Safety and welfare lens (often overlooked)

• If leaving/refusal/conflict stemmed from stress, bullying, fatigue, or safety-critical duties, tie in the employer’s safety duties (e.g., s.2 HSWA 1974) and argue those risks should have been part of the s.98(4) analysis — especially for safety-sensitive roles (drivers, machinery).

Common pitfalls (and how to avoid them)

• “No rehearing = automatic unfair.” Wrong. Taylor says whole process. Focus on what the appeal actually did (or failed to do).

• Over-reliance on Acas breaches. The Code supports adjustments and context; it doesn’t, by itself, decide unfair dismissal. Link breaches to unreasonableness under s.98(4).

• Skipping the appeal. Hands the employer Polkey (up to 100%) and a possible Acas reduction (up to 25%).

Lessons You Can Take Away

• Acas helps, but isn’t enough. Use it to show gaps in fairness, not as the headline act.

• Expect Polkey. Be ready to show why dismissal wasn’t inevitable.

• Live in s.98(4). Proportionality, alternatives, consistency, mitigation.

• Audit the outcome letter. Spot omissions and inconsistencies — use them.

• Use your appeal rights. Protect value; avoid reductions.

• Frame absences/refusals as safety where applicable. Stress/overwork can be safety issues, not just “frustration.”

Final Thoughts

Tribunals don’t award big payouts just because a procedure tripped up. The real test is overall fairness under s.98(4) ERA 1996. Taylor teaches that appeals can cure defects; Polkey and the Acas Code punish you for not appealing. So appeal — and make that appeal do the heavy lifting: re-test sanction, alternatives, consistency, and mitigation. That’s how you keep both liability and compensation alive.