1. Introduction
The right of appeal is a fundamental procedural protection in employment law. Its omission, or its inadequate operation, is a recurring cause of unfair dismissal findings before the WRC and the Labour Court.
This article sets out the substantive content of the right of appeal, the procedural requirements that attach to it, and the consequences of a defective appeal for the validity of the underlying dismissal.
2. Legislation and Case Law
The Code of Practice requires that an employer afford a right of appeal against any disciplinary sanction. The appeal must be conducted by a person who was not involved in the underlying decision. The appeal must be conducted on the merits, with the employee afforded an opportunity to present arguments and evidence. The appeal must result in a reasoned decision communicated in writing.
The constitutional underpinning of the right of appeal is derived from In re Haughey [1971] IR 217 and the line of authority applying that decision to employment matters. The principle of audi alteram partem requires not only that the employee be heard at the underlying stage but also that the employee have a meaningful opportunity to challenge the decision.
The Labour Court in Bord Gais Eireann v A Worker (AD0904) and the WRC in numerous decisions have emphasised that the appeal stage is not a formality. The appeal must involve a substantive re-examination of the decision, not a rubber-stamping exercise.
An employee’s failure to exercise an offered right of appeal may, in certain circumstances, be relevant to the WRC’s assessment. The Labour Court in Conway v Ulster Bank Ltd (UDD2026) emphasised, in the constructive dismissal context, the importance of exhausting internal procedures.
3. Decision
The decided cases turn on whether the appeal was offered, whether it was conducted by an appropriately independent person, whether it involved a substantive re-examination of the decision, and whether it resulted in a reasoned outcome.
Common defects include: no appeal being offered; the appeal being conducted by a person involved in the underlying decision; the appeal decision-maker receiving informal advice from the underlying decision-maker; a perfunctory appeal hearing without genuine engagement with the employee’s arguments; and an appeal decision that is unreasoned or that simply confirms the underlying decision without explanation.
Where any of these defects is present, the procedural fairness of the overall dismissal is likely to be impugned, regardless of the substantive merits. The Adjudication Officer or Labour Court will treat the appeal as having failed to provide the procedural protection that the law requires.
Conversely, where the appeal has been conducted by an appropriately senior and independent person, has involved a substantive re-examination of the decision, and has resulted in a reasoned outcome, the procedural fairness of the dismissal will, in general, be upheld.
4. Takeaway
The right of appeal is a fundamental procedural protection. Its omission or inadequate operation is a recurring cause of unfair dismissal findings.
For employers, the practical advice is to ensure that the appeal stage is meaningful. The appeal decision-maker should be appropriately senior and demonstrably independent of the underlying decision.
Employers should also be alert to the dangers of informal communications between the underlying decision-maker and the appeal decision-maker. Even well-intentioned attempts to brief the appeal decision-maker can compromise the independence of the appeal.
For employees, the practical advice is to exercise the right of appeal seriously and in writing. The appeal should specify the grounds (substantive and procedural) on which the underlying decision is challenged.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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