News & Insights

Successful internal appeal revives employment

Effect of a successful appeal on dismissal.

In order for an employee to claim wrongful dismissal, unfair dismissal and an uplift in compensation as a result of their employer’s failure to follow the ACAS Code of Practice, they must have been dismissed. In the recent case of Patel v Folkestone Nursing Home Ltd the Court of Appeal (CoA) considered whether an employee who was initially advised that his employment would be terminated for gross misconduct, but had this decision subsequently revoked following a successful internal contractual appeal process, had been dismissed.

Mr Patel was employed by Folkestone Nursing Homes Limited (FNH) as a care assistant. He was dismissed with immediate effect for gross misconduct for sleeping on duty and falsifying records. He successfully appealed his dismissal under FNH’s contractual disciplinary procedure and received a letter from FNH confirming that his dismissal would be revoked since he was on an unpaid break when asleep. However the appeal decision did not deal with the serious allegation that he had falsified records and Mr Patel refused to return to work. Mr Patel presented claims of wrongful and unfair dismissal to the Employment Tribunal.

The Tribunal found that Mr Patel had been dismissed deciding that the outcome of the appeal did not revive his employment contract (not least because it did not deal with the second allegation the contractual right of appeal) and also that the disciplinary process did not specify the consequences of a successful appeal. The Employment Appeal Tribunal overturned this decision and Mr Patel appealed to the CoA.

The CoA held that Mr Patel had not been dismissed. If an employee has a contractual right to appeal a decision under his employer’s disciplinary process, it is implicit that if that appeal is successful both the employer and employee are bound to treat the employment relationship as having remained in existence throughout. A successful appeal does not give the employee an option to choose whether to return to work or not. In such circumstances the employee has not therefore been dismissed and cannot claim wrongful or unfair dismissal.

That said, it was also pointed out that as the appeal decision did not address one of the serious allegations made against Mr Patel it is strongly arguable that this could have amounted to a breach of trust and confidence enabling the employee to treat himself as having been constructively dismissed.

The CoA’s decision clarifies the effect of a successful appeal where the appeal is part of a contractual disciplinary process. Many employers do not have a contractual process and this case highlights the need for such employers to ensure that any appeal decision, and its effect on the employment relationship, is communicated clearly to employees in the decision letter.

Successful internal appeal revives employment