Can an employer advertise for a replacement for a dismissed employee when that employee is appealing against the dismissal?
Yes, an employer can advertise a vacancy that has arisen as a result of the dismissal of an employee, without waiting for the outcome of the employee's appeal, however this could lead to a difficult situation for the employer should the employee's appeal succeed after a job offer has been made to a successful candidate. If the dismissed employee is not reinstated to his or her previous role because this has already been filled, he or she is likely to have a claim for unfair dismissal. Alternatively, the employer may decide to withdraw the job offer made to the successful candidate, which could lead to a breach of contract claim.
If the employee's appeal fails and his or her dismissal is upheld, he or she may argue that the fact that the employer had started the recruitment process for a replacement shows that it did not conduct the appeal process with an open mind and that the outcome had been prejudged. A tribunal might take this into account in an unfair dismissal claim, alongside other evidence of the fairness or otherwise of the procedure undertaken. The employer should ensure that it can demonstrate its reasons for rejecting the appeal and that it followed a fair procedure, under which reinstating the employee was a possible outcome.
To avoid such issues, employers should avoid unnecessary delays in the appeal process and aim to complete it before recruitment for a replacement begins, however this may not be possible if an urgent replacement is required.