A 'disappearing' dismissal

Proximity to the transfer is an important factor in deciding whether a dismissal is automatically unfair under TUPE

In the recent case of Patel v Folkestone Nursing Home Ltd, the Court of Appeal held that where an employee has been dismissed but then successfully appealed that decision under a contractual disciplinary procedure, the employee’s employment can be revived leaving no unfair dismissal claim.

Facts

The Claimant, Mr Patel, was employed by Folkestone Nursing Home Limited (Folkestone) as a healthcare assistant. His contract of employment incorporated Folkestone's employee handbook which contained a disciplinary procedure. He was dismissed for gross misconduct following a disciplinary hearing where it was found that he had slept on duty and had also falsified residents’ records.

Mr Patel appealed against his dismissal. Folkestone overturned his dismissal finding that he had slept only in rest breaks and therefore had not breached any of Folkestone’s rules. Folkestone did not however address the allegation that Mr Patel had falsified residents’ records in the appeal outcome letter. Mr Patel considered the appeal outcome was incomplete and believed he was owed a full explanation. When he did not receive a response to his request for clarification he decided not to return to work and brought claims of unfair dismissal and wrongful dismissal.

At the Tribunal hearing, the judge found that Mr Patel had been dismissed, despite the appeal outcome. This decision was overturned by the Employment Appeal Tribunal (EAT), where the judge concluded that it was inherent in the provision of a right of appeal that where the appeal was successful, the contract would revive unless there was an express provision to the contrary. Mr Patel appealed.

Decision

The Court of Appeal agreed with the EAT’s decision. It held that where an employee has a contractual right to appeal a disciplinary sanction, unless there is an express statement to the contrary in the contract, it is implicit that a successful appeal would extinguish the dismissal. The effect is that the employment relationship is treated as having remained in existence throughout.

The judge did however go on to address Folkestone’s failure to deal with the allegation of falsifying residents’ records in the appeal outcome letter. The judge stated that it was arguable Folkestone’s failure to resolve the issue was a breach of the implied term of trust and confidence which could justify an employee treating themselves as constructively dismissed. The judge invited the parties to make written submissions as to whether the appeal should be allowed on this basis.

Comment

This case is a helpful reminder that a successful appeal of a dismissal under a contractual disciplinary procedure will bind both the employer and the employee, meaning the dismissal has ‘disappeared’. Any subsequent claim for unfair dismissal would therefore be defeated.

Employers should however be aware that, where some feature of an employer’s handling of an appeal process constitutes a serious breach of contract; an employee may have grounds to treat himself as having been constructively dismissed. Employers should therefore take care to ensure that all issues raised by an employee on appeal are adequately considered. It is important that the outcome of each ground of appeal is effectively communicated to the employee before they are invited to return to work.

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