Decision dismissed

Ladbrokes Betting and Gaming Ltd v Ally

Although it may seem obvious when someone has been dismissed, the recent Employment Appeal Tribunal (EAT) decision in Ladbrokes Betting and Gaming Ltd v Ally suggests otherwise.

Basic facts

Mrs Ally worked as a cashier at one of Ladbroke’s licensed betting offices. The company handbook, which formed the basis of her contract of employment, contained a section on disciplinary procedure specifying that all employees had a right of appeal.

Following a disciplinary meeting on 8 October 2005, Mrs Ally was dismissed for gross misconduct with immediate effect. This was confirmed by letter on 11 October.

Mrs Ally appealed against that decision and on 19 December 2005, she received a letter telling her that the decision had been wrongly made, that her appeal had been successful and that she would be reinstated in her job with immediate effect, should she so wish.

She then wrote back saying that, because of the circumstances of her dismissal, she did not want her old job back. Instead, she claimed unfair dismissal and the employment tribunal agreed with her. The company appealed against that decision.

Dismissal or no dismissal

Relying on the case of West Midlands Co-operative Society v Tipton (1986), the company argued at the EAT that Mrs Ally was not entitled to bring a claim of unfair dismissal as she had not been dismissed.

The judges in Tipton said that even though an employer dismisses someone with immediate effect, that person is still entitled to use the company’s appeal procedure. Once they have lodged an appeal (as Mrs Ally did), they have to be treated as though they have been suspended without pay, rather than dismissed.

Ladbrokes also relied on Roberts v West Coast Trains (2005) in which Mr Roberts was dismissed for misconduct. This decision was overturned after an internal appeal and he was demoted instead. The Court of Appeal held that, by demoting rather than dismissing him, his contract had been revived. It said this was something which Mr Roberts had agreed could happen as part of the disciplinary process. That meant there had not been a dismissal.

In other words, his contract of employment continued. That, said the judges “is the normal result of an internal appeal procedure” unless the contract says otherwise. The fact that he had lodged his claim before his appeal had been decided did not make any difference.

Decision of the EAT

The EAT agreed with the company. It said the cases were clear authority for the proposition that if a decision to dismiss is overturned on appeal, the employee has not been dismissed, unless there was a contractual term to the contrary. There were none in this case that Mrs Ally could rely on. She had not therefore been dismissed and could not claim unfair dismissal.

The EAT also said that it made no difference, as far as the law was concerned, whether a manager decides that the decision to dismiss had been wrongly made (as happened to Mrs Ally), or if they decide that the penalty should not be dismissal but some other sanction (as in Roberts).