When is a dismissal not a dismissal?

The Employment Appeal Tribunal has considered recently the effect of revoking a decision to dismiss an employee in an internal appeal process in the case of Folkestone Nursing Home Ltd v Patel. So, when is a dismissal not a dismissal?

Allegations

The Claimant, Mr Patel, was employed by Folkestone Nursing Home Ltd (Folkestone) as a Healthcare Assistant. Disciplinary proceedings were issued against him for allegedly sleeping on duty and falsifying residents’ records. Following a disciplinary hearing, Mr Patel was dismissed for gross misconduct.

Mr Patel appealed this disciplinary decision but did not set out the remedy that he was seeking. On appeal, the decision to dismiss Mr Patel was revoked and this decision was communicated to him in writing. Mr Patel did not, however, return to work, as he was unhappy with the appeal decision for failing to deal with the allegation of falsifying residents’ records. He instead sought to bring a claim for unfair dismissal against Folkestone.

Was there a dismissal?

When the matter reached the Employment Tribunal, the question of whether there was, in fact, a dismissal arose.

At first instance, the Employment Tribunal found that Mr Patel had been dismissed for two reasons. First, Mr Patel could not be contractually bound by the outcome of his appeal, as Folkestone’s disciplinary procedure did not specify what the outcome of an appeal could be. Second, the “revocation” of dismissal in the appeal letter was unclear and only amounted to an offer for Mr Patel to return to work on an unspecified basis.

Folkestone appealed.

The EAT upheld the employer’s appeal and issued a declaration that Mr P had not been dismissed. It is inherent in the provision of a right of appeal that the employment contract will revive if the appeal is successful unless there is an express provision to the contrary. The letter to Mr P expressly stated that the decision to dismiss was revoked and that Mr P was entitled to return to work. He was therefore unable to pursue his claim for unfair dismissal.

Lessons

It is generally accepted that in circumstances where an internal appeal against a decision to dismiss is upheld, the dismissal ‘vanishes’ and is regarded as never having occurred. The individual’s continuity of employment is maintained and he/she is usually entitled to be paid for the intervening period between the dismissal and the decision to uphold an appeal.

In this case, it might have been arguable that the manner in which the employer dealt with the appeal, by not addressing the falsification allegation, could potentially have given the employee grounds to treat himself as constructively dismissed. However, this point did not form part of the claimant’s case.

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