Unfair dismissal: How to "vanish" a dismissal
Published 6 September 2016
In this case, the EAT considered whether an employee whose dismissal was overturned on appeal could claim unfair dismissal.
Mr Patel, a healthcare assistant, was dismissed for gross misconduct for sleeping on duty and falsifying employee records. He appealed the dismissal on both points, and the original decision was revoked on the basis that he was on an unpaid break when asleep. The appeal decision referred to his return to work, but not to his appeal about the original decision that he had falsified records. The employer's disciplinary procedure, including the appeal procedure, was contractual, and did not stipulate that reinstatement would be the result of a successful appeal.
Mr Patel did not return to work, and claimed unfair dismissal. However, to claim unfair dismissal, an employee must have been dismissed. The EAT was asked to decide whether, given the appeal decision, he had been dismissed, or whether the original dismissal had vanished as a result of the appeal decision.
The EAT decided that Mr Patel had not been dismissed. The wording of the appeal decision was, according to the EAT, sufficiently clear to revoke the original dismissal, in spite of the fact that it did not refer to all the disciplinary allegations. Even had the letter not been sufficiently clear, an appeal decision does not even need to be communicated for the contract to be revived. The EAT, referring to previous case law, held that it is inherent in the provision of a right of appeal that the contract will revive if the appeal is successful unless there is an express provision to the contrary.
What does this mean for employers?
The concept of a "vanishing" dismissal is nothing new. If a dismissal is overturned on appeal, the dismissal effectively disappears, and the employee is treated as having continuity of employment, and will be entitled to back pay from the date on which they were originally dismissed. This is likely to apply whether the disciplinary procedure is contractual or non-contractual.
If the employee does not return to work when a dismissal has been revoked, employers should consider carefully how they deal with the situation. It will be important not to do anything that might trigger a constructive dismissal claim or give rise to a new unfair dismissal claim. Options include treating this as a resignation or going through the disciplinary procedure and ultimately dismissing for non-attendance. Employers will also need to consider how they pay the employee under these circumstances.