The case of the disappearing dismissal

When conducting an appeal against dismissal, an employer may conclude that the original dismissal procedure was flawed and may seek to put it right at the appeal stage, so as to avoid an unfair dismissal claim.  The Court of Appeal in Patel v Folkestone Nursing Home Ltd has confirmed that this will usually be possible.

Patel was employed as a healthcare assistant in a nursing home. In April, he was dismissed without notice for gross misconduct, following a disciplinary finding that he had slept on duty and falsified residents’ records. Mr Patel was informed that he would be reported to the care homes regulator because he had put residents at risk.

Mr Patel made an internal appeal against the dismissal. In June, his employer wrote to him stating that his appeal had been successful and he would be contacted to arrange a date to return to work. It acknowledged that Mr Patel had only slept during his rest breaks and had therefore not breached any rules. However, it did not refer to the alleged falsification of records or the referral to the regulator. When he did not receive a response to his request for clarification, Mr Patel chose not to return to work and brought a claim for unfair dismissal.

The Court of Appeal upheld the previous decision of the Employment Appeal Tribunal (EAT), which held that the successful appeal effectively revived the employment contract.  It held that it is “clearly implicit” in an employment contract that “if an appeal is lodged, is pursued to conclusion and is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout”. By appealing against the dismissal the employee is accepting that, if they are successful, their dismissal will ‘disappear’ and they will no longer be able to pursue an unfair dismissal claim.

This case is a comforting reminder that a successful internal appeal against dismissal can make the original dismissal ‘disappear’ and, therefore, rectify an unfair dismissal. If the original decision to dismiss is flawed, a proper appeal can put things right and mean that the employee does not have a right to claim unfair dismissal.  In such instances, the contract will be revived and an employee cannot choose to remain dismissed unless there has been a fundamental breach of contract that might justify a ‘new’ claim for constructive dismissal.

In this case, however, the Court of Appeal did find that the appeal decision letter issued to Mr Patel in June was in “curious and unsatisfactory terms”, failing to make any findings in relation to the charge of falsifying records (which was arguably the more serious of the allegations against him) or to explain the situation regarding the regulatory referral. It was “strongly arguable” that these failures amounted to a breach of the employer’s implied duty to maintain trust and confidence.  The Judgment, therefore, also emphasises the importance of making sure that all relevant issues are covered in an appeal decision and that the individual receives a prompt response. The employer must explain as fully as possible the findings in relation to each charge and the status of any punitive measures that were imposed at dismissal stage.

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