The Court of Appeal and the case of the disappearing dismissal

Court of Appeal confirms that a successful appeal can rectify an unfair dismissal

When conducting an appeal against dismissal you may decide that the original dismissal procedure is flawed. Can the problem be put right at appeal stage?

The Court of Appeal in Patel v Folkestone Nursing Home Ltd has confirmed that the answer will usually be yes. A successful appeal will revive the employment relationship and ‘wipe out’ the dismissal, leaving the employee unable to pursue any proposed or pending unfair dismissal claim.

However, an employee may exceptionally still be able to claim that they have been constructively dismissed, if their employer has failed to follow a fair procedure or address all relevant issues at appeal stage.

What happened?

Mr Patel was employed as a healthcare assistant in a nursing home. In April, he was dismissed without notice for gross misconduct, following a disciplinary finding that he had slept on duty and had falsified residents’ records. Regarding the falsification of records, Mr Patel was informed that he would be reported to the care homes regulator, because his actions had put residents at risk.

Mr Patel pursued an internal appeal against dismissal. In June, his employer wrote to him stating that his appeal had been successful and he would be contacted to arrange a date to return to work. The letter acknowledged that Mr Patel had only slept during his rest breaks and had therefore not breached any rules. However, it did not refer at all to the alleged falsification of records or the referral to the care homes regulator. When he did not receive a response to his request for clarification, Mr Patel chose not to return to work and brought a claim for unfair dismissal.

The decision

The Court of Appeal upheld the previous decision of the Employment Appeal Tribunal (EAT), which held that the successful appeal effectively revived the employment contract.

It held that it is “clearly implicit” in an employment contract that “if an appeal is lodged, is pursued to conclusion and is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout”. By appealing against dismissal the employee is accepting that, if they are successful, their dismissal will ‘disappear’ and they will no longer be able to pursue an unfair dismissal claim.

However, this case does sound a crucial note of warning. Even though a successful appeal will ‘wipe out’ the original dismissal, an employee still has the option to refuse to return to work and to claim that they have been constructively dismissed. This situation might arise, for example, where a fair appeal process has not been followed or the appeal decision fails to deal fully and properly with key issues.

In this case, the Court of Appeal held that the appeal decision letter issued to Mr Patel in June was in “curious and unsatisfactory terms”, failing to make any findings in relation to the charge of falsifying records (which was arguably the more serious of the allegations against him) or to explain the employer’s position regarding the regulatory referral. It was “strongly arguable” that these failures amounted to a breach of the employer’s implied duty to maintain trust and confidence.

What does this mean for me?

This decision is a reassuring reminder that a successful appeal can rectify an unfair dismissal. If the original decision to dismiss is flawed, a proper appeal can put things right and cancel out entirely an employee’s right to claim unfair dismissal.

However, the Judgment emphasises the importance of attention to detail, and making sure that all relevant issues are covered off in an appeal decision. It is crucial to explain as fully as possible your findings in relation to each charge and the status of any punitive measures that were imposed at dismissal stage. Also be prepared to enter into prompt ‘follow-up’ correspondence with a successful appellant. In this case, the employer’s failure to respond to the employee’s request for clarity in part prompted his employment tribunal claim.

Comment

While this case does not break new ground, it is a clear and compelling reminder that a successful internal appeal against dismissal will make the original dismissal ‘disappear’. The contract will be revived as if no dismissal had ever taken place. You must take back an employee following a successful appeal, and an employee cannot choose to remain dismissed (unless there has been a fundamental breach of contract that might justify a ‘new’ claim for constructive dismissal). As the original dismissal is eradicated by a successful appeal, the employee should return to the same role on the same terms and conditions. If you wish to substitute a different sanction on appeal (such as a demotion or change in duties or work location) take care to check that your disciplinary policy expressly allows for this. If you are unsure we would be happy to advise you.

If you have any questions or would like to know more about our update, please speak to your usual Weightmans contact or Louise Singh.

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