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Vanishing Dismissals

The Employment Appeal Tribunal in the case of Folkestone Nursing Home Ltd v Patel was asked to consider whether an employee claiming unfair dismissal had actually been dismissed or whether the dismissal had “vanished” by virtue of a successful appeal.

Background

Mr Patel was employed as a healthcare assistant. Mr Patel’s contract of employment incorporated the Employer’s handbook in which the Employer’s disciplinary procedure was set out.

Mr Patel was accused of sleeping on duty and falsifying records and was dismissed for gross misconduct following a disciplinary hearing.

He appealed the decision and the appeal was heard in accordance with the disciplinary procedure. His defence to the allegations was that he had only been sleeping while on an unpaid break and the records had not been completed because of an interruption.

Following the appeal hearing, the appeal chair wrote to Mr Patel stating that it was accepted that he was asleep while on an unpaid break and therefore he had not breached any of the Employer’s rules or procedures. The letter went on to state that the decision to dismiss was revoked and a date for his return to work would be arranged.

However, Mr Patel was dissatisfied with the letter as it did not deal with the other allegation that he had falsified records. Mr Patel did not return to work and subsequently brought a claim for unfair dismissal.

Decision

The question for the Employment Tribunal was whether there had actually been a dismissal as a result of the appeal outcome. Although the Employment Tribunal found that the Claimant had been dismissed, because the appeal outcome letter was unclear and left out significant issues, the Employer’s appeal was allowed.

The Employment Appeal Tribunal (‘EAT’) found that the wording of the appeal outcome letter had been sufficiently clear as it expressly stated that the original decision had been revoked and the Claimant would return to work. In any event, even if the appeal outcome letter had not been communicated, the EAT, referring to previous case law, held that reinstatement is inherent as a result of a successful appeal unless there is an express provision to the contrary.

The EAT issued a declaration that the Claimant had not been dismissed and therefore had no jurisdiction to hear the claim for unfair dismissal.

Conclusion

The case highlights that if a dismissal is overturned on appeal, the dismissal “vanishes” and the employee returns to work for the employer with his or her continuity of service retained, unless any contractual term or provision provides for a different result.

If a dismissal is overturned at appeal but the employee does not return to work, employers should be wary of unfair dismissal claims and seek advice on how best to deal with the situation.

If you would like to speak to us about disciplinary procedures or dismissals, please feel free to email us  or contact us on 0191 282 2880 for a no obligation chat.

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