The vanishing dismissal

Where an employee is dismissed after a disciplinary procedure, they should have a right to appeal against that decision. This right to appeal is part of the ACAS Code of Practice on Discipline and Grievance, and is also likely to be set out in an employer’s disciplinary procedure or policy. The procedure may permit the employer to substitute an alternative disciplinary sanction at appeal stage, such as demotion or the imposition of a final written warning.

Unless an employee makes it clear that they are seeking some other outcome, when a dismissed employee appeals against their dismissal it is implicit that they are asking their employer to find that the dismissal decision was wrong and to return them to their job. A successful appeal will usually involve paying the employee back-dated pay from the date they were dismissed to the date they start back at work, i.e. putting them in the position as if they had not been dismissed.

This all seems straightforward! However, sometimes things can become a bit more complicated, as shown in the recent case of Folkestone Nursing Home Ltd v Patel which was heard in the Employment Appeal Tribunal (EAT).

In this case, Mr Patel was dismissed for gross misconduct following allegations that he had slept on the job and falsified residents’ records. The decision to dismiss was taken by an external consultant who conducted the disciplinary hearing. Mr Patel appealed against the decision to dismiss. He said he was sleeping during his rest break, and that he had been unable to complete the daily record sheets because of an interruption. After an appeal hearing (which was heard by an external manager of the care home), it was decided that the decision to dismiss Mr Patel should be revoked. A letter was sent to Mr Patel to confirm this decision and said that someone would be in touch to arrange his return to work. However, the letter only referred to revocation of the allegation that Mr Patel had slept on the job, and made no reference to the second allegation about falsifying residents’ records. Mr Patel was not satisfied with this as he felt he was owed a full explanation, and so he did not return to work. He then raised claims in the Employment Tribunal for unfair dismissal.

The Employment Tribunal found that there had been a dismissal. The Employment Judge said that the “revocation” of dismissal in the letter was unclear and left out significant issues.

The care home appealed this decision to the EAT. At this stage, the care home relied on a former EAT case which had similar circumstances (Salmon v (1) Castlebeck Care (Teesdale) Ltd (In Administration) (2) Danshell Healthcare Ltd and others (2014)), in which it had been decided that the employee had succeeded in their appeal, and there had been no need for the outcome of the appeal to have been communicated to the employee for it to be effective.

The EAT agreed with the appeal (referring to the Salmon case above) and found that the decision of the Employment Tribunal was wrong – the appeal letter had made it clear enough that the decision to dismiss had been revoked, even it did not go into enough depth about why this decision had been taken. Therefore, Mr Patel had not been dismissed and his claim for unfair dismissal could not be heard.

As an aside, because his appeal failed usually Mr Patel would have had to pay the fees the care home had to pay in order to raise their appeal in the EAT. However, the EAT decided that Mr Patel would not have to pay the fees because the care home (represented by an external company who they engaged for HR advice) had failed to address the point about whether Mr Patel had been dismissed in preliminary hearings, and also failed to bring the Salmon case to the attention of the Employment Tribunal. As a result, the EAT said the case had been made more complex than it needed to be.

All of this could probably have been avoided had the appeal letter been clearer about why the decision was made to bring Mr Patel back to work. That said, most employees will be unhappy if they have been dismissed, and as such any appeal which changes the original decision made in a disciplinary should be handled carefully.

In this case, the appeal decision completely revoked the disciplinary decision (so Mr Patel would have returned to work with a clean slate). However, where an employer decides to apply an alternative sanction to dismissal on appeal, the nature of the alternative sanction may be such that, while the original dismissal disappears, the employee may then be entitled to treat themselves as constructively dismissed.

Mr Patel has applied for permission to appeal the decision to the Court of Appeal, so there may be more news on this case in the future. We will of course, keep you updated if anything significant comes out of any appeal!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.