The Court of Appeal and the case of the disappearing 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…. READ FULL ARTICLE