Silent on appeal
Labour & European Law Review Weekly Issue 490 05 October 2016
Employees have the right to appeal against a decision taken by their employer following a disciplinary hearing to dismiss them. In Folkestone Nursing Home Ltd v Patel, the Employment Appeal Tribunal (EAT) held that where, following a successful appeal, the decision to dismiss is revoked, it is implicit that a contract would be revived in those circumstances.
Following his dismissal for gross misconduct on two grounds - sleeping on duty and falsifying residents’ records. – Mr Patel appealed. His appeal hearing took place on 8 May and he was informed by letter dated 24 June that as he was on an unpaid break when he was found to be asleep, he had not breached any company rules and should return to work.
However, instead of returning to work, Mr Patel brought claims of wrongful and unfair dismissal, saying that the letter was incomplete as it did not deal with the allegation that he had falsified records.
The tribunal had to decide whether, in fact, there had been a dismissal given that the decision to dismiss Mr Patel had been revoked but he had not returned to work.
The tribunal judge held that there had been a dismissal for two reasons. First, although the right of appeal was contractual, the disciplinary procedure did not set out what happened where the employee’s appeal was successful and therefore Mr Patel was not contractually bound by the outcome of his appeal. Secondly, she held that the letter amounted to no more than an offer to Mr Patel to return to work, the second allegation was not dealt with and it was unclear as to what the outcome of the appeal was in relation the second allegation.
Relying on the decision in Salmon v Castlebeck Care, the EAT allowed the employer’s appeal. In Salmon, the employer’s disciplinary procedure failed to state that reinstatement was an option on appeal against dismissal. That being the case, the EAT held in Salmon that it must be implicit in any system of appeal, unless otherwise stated, that the appeal panel has the right to reverse or vary the decision made in the disciplinary hearing.
It followed, therefore in this case that although the disciplinary procedure was also silent on the issue of reinstatement, it was implicit that the contract would be revived if the appeal was successful unless there was an express provision to the contrary.
The EAT also disagreed with the tribunal judge’s second ground for finding that there had been a dismissal because the letter notifying him of the outcome of his appeal was unclear on the second allegation. The EAT held that the letter sent to Mr Patel expressly stated that the decision was revoked and that he was entitled to start work again. In any event, the EAT made clear that, for a successful appeal to take effect, it was not actually necessary for the employer to communicate the decision to the appellant at all. The EAT therefore made a declaration that Mr Patel was not dismissed.
This case is one of a number of recent decisions which have held that where an appeal against dismissal is successful the employee is reinstated and so unable to claim unfair dismissal. It is also noteworthy that even though the employer’s appeal succeeded the EAT exercised its discretion not to order the employee to pay the employer’s fees on the basis that the employer had failed to identify as an issue whether Mr Patel had in fact been dismissed.