On 31 August 2021 the COVID-19 right-to-work concession allowing employers to carry out...
Employment Law Cases
Effect of a successful appeal on the employment contract
Patel v Folkestone Nursing Home Ltd
Where a contract of employment provided for a disciplinary process and a right of appeal against dismissal, it was implicit that a successful appeal would, without more, revive the employment relationship and extinguish the dismissal.
Mr Patel, a healthcare assistant, was dismissed for gross misconduct (sleeping on duty and falsifying patients’ records). He appealed, and this was successful, his employer writing to him to arrange a return to work. However, the appeal didn’t deal with the falsification of records issue. Mr Patel asked for clarification on this point and when he didn’t receive it, he chose not to return to work and brought an unfair dismissal claim.
The tribunal upheld his claim, rejecting the employer’s argument that the appeal had reinstated Mr Patel and he hadn’t therefore been dismissed. The EAT allowed the employer’s appeal and Mr Patel appealed.
Court of Appeal decision
Upholding the EAT’s decision, the Court of Appeal 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.
However, an unresolved issue in the case, as the employer was not represented at the hearing, was whether the letter upholding the appeal, which only made reference to one of the charges and made no reference to the charge of falsification of documents which it had threatened to report and the failure to answer Mr Patel’s questions about those allegations in subsequent correspondence, breached the implied term of trust and confidence and therefore what the tribunal had actually been dealing with was a claim of constructive dismissal, not actual dismissal. The Court of Appeal invited written submissions on the point.
Link to judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1689.html
On the main issue of the effect of an appeal on a dismissal, this decision doesn’t break new ground - rather it’s a useful reminder that a successful appeal can rectify an unfair dismissal.
However, you must ensure that any appeal deals with all the issues. Here the Court of Appeal was critical of the appeal letter sent to Mr Patel calling it ‘curious and unsatisfactory’. It hadn’t dealt with the arguably more important charge of falsifying records and this failure made it ‘strongly arguable’ that such an omission breached the employer’s duty to maintain trust and confidence. In other words, an unsatisfactory/incomplete appeal process might justify an employee treating themselves as constructively dismissed.
Indeed, in a later addendum to its judgment (after having considered further submissions on this issue), the Court of Appeal held that the EAT’s reasoning on the constructive dismissal point was inadequate. The employer’s letter upholding Mr Patel’s appeal was unclear and failed properly to deal with the falsification of documents issue. It wasn’t sufficient for the letter simply to say that the earlier decision was revoked, and that Mr Patel was entitled to start work again. By leaving this issue ‘completely up in the air’, the employer acted in breach of the implied duty to maintain trust and confidence in the employment relationship and, as a result, Mr Patel was entitled not to return to work and to treat himself as constructively dismissed.