Revocation of initial decision to dismiss meant that no dismissal had taken place


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The Court of Appeal has held in Folkestone Nursing Home Ltd v Patel that an employee, who was told that the initial decision to dismiss him had been revoked, could not succeed in a claim for unfair dismissal as he had not been dismissed. This was the case despite the fact that the appeal hearing only addressed one of the two disciplinary allegations that had resulted in his dismissal.

Mr Patel was employed as a healthcare assistant by Folkestone Nursing Home Ltd (Folkestone). He was charged with sleeping on duty and falsifying residents' records. Following a disciplinary hearing he was dismissed for gross misconduct. He appealed the decision, which was revoked (on the basis that he was on an unpaid break when he was sleeping) and he was invited to return to work. He did not do so, stating that he was dissatisfied with the reasoning given in the letter as it did not deal with the allegation that he had falsified residents' records, and brought a claim for unfair dismissal.

At first instance the tribunal found that Mr Patel had been dismissed as there was no provision in the employer's disciplinary procedure dealing with what the outcome of an appeal could be, and the revocation of the dismissal did not deal with the second allegation on the basis of which the decision to dismiss Mr Patel had been made.

The Court of Appeal (agreeing with the Employment Appeal Tribunal which had overturned the tribunal's decision) reasoned that, while the disciplinary procedure did not specify that reinstatement would be the result of a successful appeal, that was inherent in the provision of the appeal. It held that the dismissal had been expressly revoked and it was clear that Mr Patel was entitled to return to work. The Court did, however, raise the possibility of another potential ground of appeal on the basis that the failure to revoke the allegation of falsifying residents' records which the Court considered the "most serious of the allegations" in the appeal letter was a breach of the implied duty of trust and confidence. As a serious breach of contract can arise by virtue of the employer's handling of a contractual appeal it may justify an employee treating themselves as dismissed. The Court invited the parties to make written submissions as to whether an appeal should be allowed for this reason.

Take note: Even if a disciplinary procedure does not contain provisions in respect of the outcome of an appeal, the decision in Patel shows that it is implicit that when an employee appeals against a dismissal, they are asking for it to be set aside. The fact that only one of the disciplinary charges was addressed in the appeal was irrelevant as Mr Patel had been expressly informed that the decision was revoked.

However, as the Court raised the possibility that the employer had effectively breached the employee's contract by failing to revoke one of the disciplinary allegations on appeal, it's going to be important to ensure that all grounds of the disciplinary appeal are covered.

This article is taken from HR Law - August 2018.

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