Unfair Dismissal - EAT holds that a dismissal was unfair

Unfair Dismissal - EAT holds that a dismissal was unfair because of a defective appeal process

19th February, 2026 by Jonathan Mumby

The Employment Appeal Tribunal (EAT) has published a judgment on 13 February 2026, in the case of Milrine v DHL Services Limited. The EAT held that an employee dismissed on the ground of capability, after he had been off work for more than two years, was unfair due to the employer’s defective appeal process.

Mr Milrine was a HGV driver and was dismissed on the grounds of medical incapability. The dismissal was appealed by Mr Milrine, but the allocated appeals manager declined to hear the appeal. A replacement appeal manager then failed to arrive on time for the scheduled hearing. DHL asked the employee and his representative to propose a date for the rescheduled appeal meeting and select another manager, however, this request was not put in writing. In the end, no internal appeal took place and Mr Milrine claimed unfair dismissal.

The appeal was heard at the EAT and they held that the dismissal was in fact unfair due to the flawed appeal process. The conclusion drawn by the EAT, mentioned the following key points:

When looking at the statutory test set out in s.98 of the Employment Rights Act 1996, the appeal process will be relevant to the tribunal’s determination of whether a dismissal was fair as the test requires the whole dismissal process to be examined..
If an employer does not offer an appeal, or the appeal process is carried out poorly, the dismissal can still be found unfair, even if the original decision to dismiss was reasonable. The appeal stage matters in its own right, and it doesn’t have to be capable of changing the outcome for it to affect fairness.
The appeal defects in this case were significant and unusual. In these more serious appeal cases the EAT found that if a tribunal wishes to make a finding of a fair dismissal, the tribunal needs to show clearly why, despite the issues, the dismissal is still considered fair. The more striking the flaws, the greater the need for judicial reasoning.
It was stated that leaving an employee confused, failing to manage the process proactively, or failing to confirm arrangements in writing falls well below good employment relations practice and this may lead to a finding of unfair dismissal.
Where the appeal process is defective and this makes the dismissal procedurally unfair, but it is clear that dismissal would still have occurred, the defect affects the remedy rather than the employer’s liability. The tribunal must still assess the overall fairness, but the likely outcome influences compensation, not the finding itself.

Jonathan Mumby commented

Milrine v DHL is a stark reminder that employers cannot treat the appeal stage as an afterthought. The EAT made clear that even where dismissal may be justified, a poorly handled or abandoned appeal can render the entire process unfair. Ensuring the appeal is handled correctly is essential to getting the dismissal right.

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