Can I advertise to replace a dismissed employee if that employee is appealing against the dismissal?
Yes, an employer can advertise a vacancy resulting from the dismissal of an employee without waiting for the outcome of the employee’s appeal.
However, should the employee successfully appeal the dismissal decision, this could lead to a problematic situation for the employer, should a job offer have been made to a successful candidate during the appeals process. If the dismissed employee is not reinstated to their previous role because this has already been filled, they could make a claim to the employment tribunal for unfair dismissal. The employer may then decide to withdraw the job offer made to the successful candidate, but that in turn could lead to a breach of contract claim by the candidate offered the role.
If the employee’s appeal fails and their dismissal is upheld, they could argue in the employment tribunal that in starting the recruitment process for a replacement, the employer has shown that it did not conduct the appeal process with an open mind and therefore, that the outcome had been prejudged. An employment tribunal might take this into account were there to be an unfair dismissal claim, alongside other evidence of the fairness of the procedure undertaken by the employer. An employer should ensure it can demonstrate its reasons for rejecting the appeal, and, that it followed a fair procedure, under which reinstating the employee was always a possible outcome.
By avoiding unnecessary delays in the appeals process, employers can and should aim to complete the appeals process before embarking on any recruitment to replace a dismissed employee. It is however, recognised that this may not be possible if a replacement is required urgently.
For more information or to book an HR consultation please contact Karen Scott on 07762 629 448 or get in touch by clicking here.
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