Unfair Dismissal: No dismissal where the employee successfully appealed under a contractual disciplinary policy

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Unfair Dismissal: No dismissal where the employee successfully appealed under a contractual disciplinary policy

Published 6 August 2018

The facts

Mr Patel was a healthcare assistant, who was dismissed for gross misconduct for sleeping on duty and falsifying employee records. He appealed the dismissal on both points, and the original decision to dismiss was revoked on the basis that he was on an unpaid break when asleep.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.

The employment tribunal considered that Mr Patel had a “live” dismissal, so could claim unfair dismissal. However, as we reported (please see our alert here) the EAT disagreed: it held that Mr Patel could not claim unfair dismissal, because he had not been dismissed. The EAT decided that Mr Patel had not been dismissed: the wording of the appeal decision was 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. Mr Patel appealed to the Court of Appeal, arguing that the EAT was incorrect in this.

The Court of Appeal dismissed Mr Patel’s appeal. It agreed with the EAT that, where there is a contractual right of appeal against a dismissal, it was implicit that a successful appeal would require both employer and employee to treat the employment relationship as having remained in existence throughout.

The Court of Appeal did, however, open up the possibility of an appeal on a different ground. The original letter of dismissal did not deal with serious allegations against Mr Patel. The Court of Appeal said that it was strongly arguable that this amounted to a breach of trust and confidence, and it might possibly therefore justify Mr Patel in treating himself as having been constructively dismissed. The parties were invited to make written submissions as to whether the appeal should be allowed on this basis.

What does this mean for employers?

As the Court of Appeal upheld the EAT’s judgment, this judgment does not create any new legal principles. However, when an employee whose dismissal has been overturned on appeal, does not return to work, employers are faced with a difficult situation. They must be careful not to do anything that might trigger a constructive dismissal or give rise to a new unfair dismissal claim.

Patel v Folkestone Nursing Home Ltd

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Key Contacts

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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