Letter advising appeal is out of time

You can use our letter to advise employees that their appeal against a disciplinary or capability sanction or a grievance decision can’t be heard as it’s out of time. However, be careful about being too rigid in sticking to a prescribed time limit as you still need to comply with the requirements of fairness.

Acas Code of Practice and Guide

The Acas Code of Practice on Disciplinary and Grievance Procedures provides that employees who have had disciplinary action taken against them, or who have raised a grievance, should be allowed to appeal if they feel that the action taken against them is wrong or unjust or they believe their grievance has not been satisfactorily resolved. It provides that the employee should let their employer know the grounds for their appeal in writing. However, nowhere in the Acas Code does it set out a time limit for appealing but the non-statutory Acas Guide which accompanies the Code says that an appeals procedure should contain a time limit within which the appeal should be lodged. It states that five working days is commonly felt appropriate, although this may be extended in particular circumstances.

Need for fairness

Our disciplinary, capability and grievance procedures all state that an appeal should be lodged within five working days of the decision. The time calculation really needs to run from the day after the employee receives your decision until the date you receive their appeal. Whether or not you stick rigidly to the prescribed time limit for appeal is a question of reasonableness in each case. You can argue that you afforded the employee the right of appeal but the employee didn’t avail themselves of it because of a failure to comply with the time limit. However, there may be good reasons why the employee was out of time so don’t just reject the appeal out of hand. Alternatively, the employee may raise new evidence that was not available at the original hearing and which may have an effect on the outcome, so in that case give serious consideration to hearing the matter outside the time limit. You need to balance the reason for the late submission against any potential delay, the issues raised by the appeal letter and the requirements of fairness. 

Out of time appeal

Our Letter Advising Appeal is Out of Time acknowledges the employee’s appeal but then draws attention to the time limit. It states that the appeal has been submitted outside that time limit and then confirms that you’re unable to hear the appeal as it’s out of time. To address the issue of fairness and to ensure you’re not being too rigid, we’ve then provided that the employee can request an extension of time in writing. To do this, they need to set out the reason for their failure to comply with the time limit and any mitigating circumstances and enclose any relevant supporting evidence. It concludes by saying that you’ll then decide whether to exercise your discretion to allow the late appeal, but that you’ll only do this in exceptional circumstances. In practice, you then need to carefully consider a request to extend the time limit and give reasons for any decision not to allow the appeal to be heard out of time.