When is a dismissal not a dismissal?

The Employment Appeal Tribunal has recently considered the effect of revoking a decision to dismiss an employee in an internal appeal process in the case of Folkestone Nursing Home Ltd v Patel.  It held that in such circumstances the dismissal essentially “vanishes” with the effect that a claim for unfair dismissal cannot be brought.

Facts
The Claimant, Mr Patel, was employed by Folkestone Nursing Home Ltd (Folkestone) as a Healthcare Assistant.  Disciplinary proceedings were issued against him for allegedly sleeping on duty and falsifying residents’ records.  Following a disciplinary hearing, Mr Patel was dismissed for gross misconduct.

Mr Patel appealed this disciplinary decision but did not set out the remedy that he was seeking.  On appeal, the decision to dismiss Mr Patel was revoked and this decision was communicated to him in writing.  Mr Patel did not, however, return to work, as he was unhappy with the appeal decision for failing to deal with the allegation of falsifying residents’ records.  He instead sought to bring a claim for unfair dismissal against Folkestone.

When the matter reached the Employment Tribunal, the question of whether there was, in fact, a dismissal arose. 

At first instance, the Employment Tribunal found that Mr Patel had been dismissed for two reasons.  First, Mr Patel could not be contractually bound by the outcome of his appeal, as Folkestone’s disciplinary procedure did not specify what the outcome of an appeal could be.  Second, the "revocation" of dismissal in the appeal letter was unclear and only amounted to an offer for Mr Patel to return to work on an unspecified basis.

Folkestone appealed.

Decision
On appeal, the Employment Appeal Tribunal (EAT) overturned the Employment Tribunal’s decision and held that Mr Patel had not been dismissed.

The EAT accepted Folkestone’s argument that there was no requirement for a disciplinary procedure to set out expressly what the effect of a successful appeal would be.  It considered that whilst the disciplinary procedure did not specify that reinstatement would be the result of a successful appeal, that result was an inherent possibility in the provision of the appeal.

In making this decision, the EAT relied on the earlier case of Salmon v Castlebeck Care and others.  This case is authority for the proposition that it is not necessary for there to be an express provision for revival or reinstatement.  It is implicit in any system of appeal (unless otherwise stated) that the appeal decision maker has the right to reverse or vary the decision made below.  Where this concerns a dismissal, a successful appeal means that the decision to dismiss will not take effect.

The EAT also agreed that, whilst there was no requirement for an appeal decision to be communicated (in writing or otherwise) to have effect, Folkestone had in fact communicated its decision in writing and, in the EAT’s opinion, the words used had been clear enough to revoke the dismissal.  As such, the claimant was entitled to start work again, his contract was revived and he was entitled to back pay.

Comment
It is generally accepted that when an employee appeals against a decision to dismiss, they are, unless expressly stated otherwise, asking for the dismissal to be set aside and to be re-employed.  The EAT’s application of the principle 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) therefore seems logical and correct.

Despite the EAT’s decision in this case, employers may wish to consider expressly setting out in their disciplinary procedure the effect of a decision to revoke a dismissal.  There are, however, pros and cons to doing this.  In any event, an employer would be well advised to ensure that any appeal decision, and its effect of the employment relationship, is communicated clearly.

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Michelle Hobbs

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