A February 2026 decision of the EAT (Employment Appeal Tribunal) in Milrine v DHL Services Ltd serves as an important reminder that a fair dismissal is about more than the underlying reason for dismissal. Even where an employer may have sound grounds for ending employment, failures in the appeal process can fundamentally undermine the fairness of the decision.
Background to the case
Mr Milrine was employed as an HGV driver by DHL. He had been absent from work for over two years due to medical incapacity and was ultimately dismissed on capability grounds. Following his dismissal, Mr Milrine exercised his right to appeal.
However, the appeal process was beset by difficulties. The manager originally identified to hear the appeal declined to do so, and the subsequently nominated manager failed to attend the scheduled appeal hearing. Although DHL asked Mr Milrine and his representative to suggest an alternative appeal manager and potential dates, those communications were not followed up or confirmed in writing. In practice, no appeal hearing ever took place, leaving Mr Milrine without a meaningful opportunity to challenge the dismissal decision.
The EAT’s decision
The EAT was asked to consider whether the dismissal could nevertheless be fair, despite the absence of a properly conducted appeal. It concluded that it could not.
The EAT emphasised that the right to appeal is a fundamental component of a fair disciplinary process and is expressly recognised in the Acas Code of Practice on disciplinary and grievance procedures | Acas. Even where a dismissal appears substantively reasonable, serious procedural failures at the appeal stage may render the dismissal unfair overall.
In this case, the tribunal identified multiple shortcomings: uncertainty over who would hear the appeal, repeated delays, a lack of clear written communication, and the complete failure to hold an appeal hearing. While the original decision to dismiss for long term incapacity might have been reasonable, the defective handling of the appeal was a significant procedural flaw that could not be overlooked.
The EAT also reiterated that procedural defects may be relevant not only to liability but also to remedy. Even where an appeal would not ultimately have changed the outcome, failures in process can still impact compensation.
Lessons learned
Employers should ensure that every dismissal decision is accompanied by a clear, workable appeal process. In practical terms, this means identifying an appropriate appeal manager at an early stage, confirming arrangements in writing, and actively managing communications so the employee understands what will happen and when. Where difficulties arise - such as a manager becoming unavailable - these should be addressed promptly and transparently.
A well run appeal process is not a mere formality. It is a vital safeguard that can correct earlier errors, demonstrate procedural fairness, and significantly reduce the risk of successful unfair dismissal claims. Taking the appeal stage seriously is both a legal requirement and a matter of good employment practice.
How we can help
As well as taking legal advice on the Helpline from our team of Employment advisers at an early stage, you also have access to a suite of template letters supporting the disciplinary process together with the document checking service - NFU Employment Service Template Documents – NFU Employment Service
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