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What happens after a successful appeal against dismissal?

The Court of Appeal in the case of Patel v Folkestone Nursing Home Ltd has held that a successful appeal against dismissal revives the original contract of employment even where there is no contractual provision for that to happen.

Background

The Claimant was employed by Folkestone Nursing Home Ltd (“the Company”) as a care assistant. He was dismissed over two allegations of gross misconduct (falsifying records and sleeping on duty). His contract of employment incorporated the Company’s staff handbook which contained a disciplinary procedure. There was a right to appeal under the disciplinary procedure but it did not state what the effect of a successful appeal would be.

The Claimant appealed against his dismissal and was subsequently informed in writing that his appeal was successful. However, the appeal letter only addressed one of the allegations and did not mention the other. The Claimant was dissatisfied with the explanation given in the appeal letter and refused to return to work. He issued a claim in the Employment Tribunal for unfair dismissal.

Decision

At the Employment Tribunal, the Company argued that the Claimant had been reinstated after the successful appeal and therefore had not been dismissed. However, the tribunal disagreed with this approach and held that it should not be implied into the contractual procedure, which was silent on the issue, that a successful appeal automatically resulted in re-instatement.

The Court of Appeal disagreed and overturned the tribunal’s judgement. It held that in the context of an ordinary employment contract and in the absence of some express term, the effect of a contractual right of appeal against dismissal is that a successful appeal extinguishes the original dismissal and the contract of employment is revived.

Comment

This case may seem helpful as it demonstrates that employers can use appeals to effectively extinguish a potentially unfair dismissal. However, even if an employee is successful at appeal and is reinstated, depending on the circumstances, they could claim constructive unfair dismissal on the basis of a breach of the implied term of trust and confidence.

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