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Will employees who successfully appeal dismissals be treated as having never been dismissed?

In the case of Ramesh Patel v Folkestone Nursing Home Ltd [2018], EWCA Civ 1689, Mr Patel, the claimant, was in March 2014 with two disciplinary offences during his employment as a care assistant at a Folkestone nursing home (the respondent). He was found to be asleep on duty and to have falsified records of certain residents.

Gross misconduct

The respondent held a disciplinary hearing at which both charges were found to be proven; Mr Patel was consequently dismissed immediately without notice for gross misconduct. His employer also said that it would refer Mr Patel to the Disclosure and Barring Service (DBS). Mr Patel successfully appealed his dismissal. However, the respondent’s appeal outcome correspondence only referred to the allegation that Mr Patel was asleep, omitting the allegations of falsification of records or the DBS referral. Mr Patel was unhappy about this and brought tribunal proceedings for a number of claims, including unfair and wrongful dismissal.

The Employment Tribunal held that Mr Patel had been dismissed on 17 July 2014 and found his claims were made out. This was mainly due to the lack of clarity in the respondent’s appeal outcome letter.

The respondent appealed against this decision and argued that, because of the successful appeal, Mr Patel was not dismissed. The Employment Appeals Tribunal (EAT) accepted this argument and overturned the tribunal’s decision. Mr Patel then appealed this decision at the Court Of Appeal.

Court of Appeal decision on appeal dismissals

The Court of Appeal agreed with the EAT and confirmed that an employee cannot be considered dismissed where there is a successful appeal to a dismissal.

The Appeal Court explained that, where an employee successfully appeals their dismissal, the “effect is that both employer and employee are bound to treat the employment relationship as having remained in existence” throughout the disciplinary process, the employee is entitled to all back pay throughout this period and retains all express and implied terms of their contract.

The court did, however, consider whether Mr Patel had treated himself as being constructively dismissed and stated that it is “strongly arguable” that his employer’s failure to refer to the second allegation and whether they would still notify the DBS could be treated as a breach of the implied term of trust and confidence. The court invited both parties to make written submissions as to whether the appeal should be allowed on this basis.

Practical points for employers to note

This judgment confirms that if an employee successfully appeals dismissal then the employee will be treated as having never been dismissed.

However, this case also highlights the importance of fully engaging with an appeal process; employers should ensure they clearly address all allegations that are being appealed in correspondence. Failure to do so, even if the appeal is allowed, could leave them open to a claim of constructive dismissal on the basis of a breach of the implied term of trust and confidence.

For more information on constructive unfair dismissal, employees who appeal dismissals or any of the other issues raised in this article, please contact Jonothan Scollen in the Leeds Employment team by emailing jscollen@lyonsdavidson.co.uk or calling 0113 368 7583.

Posted on Dec 11th, 2018 by Lyons Davidson

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