Employment Law Speed Read – 23/07/18

Patel v Folkestone Nursing Home

In Patel v Folkestone Nursing Home the Court of Appeal held that where an employee successfully appeals their dismissal, the original dismissal is regarded as having no effect.

Facts

In 2008 Mr Patel became employed as a care assistant by Folkestone Nursing Home Limited (“Folkestone”).

In March 2014, the appellant was charged with two disciplinary offences:

• that he had fallen asleep whilst on duty; and
• that he had falsified resident’s records.

After a disciplinary hearing Mr Patel was found guilty of both charges and was summarily dismissed for gross misconduct. In the dismissal letter, Folkestone stated that they would be referring Mr Patel to the Disclosure and Barring Service (DBS) in relation to offence 2 as he had put residents at risk.

Mr Patel appealed this decision under Folkestone’s contractual disciplinary procedure.  By letter dated 24 June 2014, Folkestone informed Mr Patel that his appeal had been successful.  However, this letter only referred to offence 1, made no reference to offence 2 and did not state whether the referral to DBS would be withdrawn.

On this basis Mr Patel refused to return to work and claimed unfair dismissal.

Employment Tribunal

At the Employment Tribunal (ET) Folkestone argued that by reason of Mr Patel’s successful exercise of his contractual right to appeal, there had been no valid or effective dismissal and consequently he could not claim that he had been unfairly dismissed.

The ET rejected this argument and held that the Claimant had been unfairly dismissed and that, in the absence of express contractual wording stating an employee would be reinstated on a successful appeal, this should not be implied.

In addition, the ET also cited the lack of clarity in the appeal outcome letter (specifically in relation to Folkestone’s failure to address allegation 2 and the referral to the DBS) as a further reason for finding that Mr Patel had been dismissed.

Employment Appeal Tribunal 

At the Employment Appeal Tribunal (EAT) Folkestone argued that the previous case law had demonstrated that there was no requirement for an employer’s appeal procedure to expressly give the right to reinstate. It was implicit in the terms of the employment contract governing disciplinary appeals, that a successful appeal against dismissal would overturn the dismissal and revive the employment contract.

The EAT found for Folkestone, agreeing that unless there was an express provision to the contrary, the employment contract would be revived if there was a successful appeal.

The EAT also disagreed that Folkestone’s appeal decision letter was unclear as it explicitly stated that the decision to dismiss was revoked and that he was to return to work.

Court of Appeal 

The Court of Appeal (CoA) upheld the decision of the EAT. The CoA confirmed that where a successful appeal is brought by an employee “the employer is contractually bound to treat the previous dismissal as having no effect and the employee is bound in the same way”.

Consequently, Mr Patel’s dismissal was treated as having no effect at the time he brought his unfair dismissal claim.

However, the CoA did find that there was a lack of clarity in Folkestone’s appeal decision letter and that this may have amounted to a breach of the implied term of trust and confidence.  Consequently, this could allow Mr Patel to claim that he had been constructively dismissed.

However, the CoA did not make a finding as to this point and requested further submissions from both parties.

Comment

This decision reiterates the position that where an employee successfully appeals their dismissal, the appeal revives their employment contract and “extinguishes” the original dismissal.

However, it is also a warning to employers to ensure that if they do allow an appeal, they need to be clear in their decision by addressing and resolving all of the allegations that have been brought against an employee. A failure to do so, could lead to an employee arguing that they have been constructively dismissed.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.