The Vanishing Dismissal

What is the effect of a successful appeal against dismissal by an employee?

It is generally accepted that, if a dismissal is overturned on appeal, the dismissal is extinguished and the employee is automatically reinstated.

However, sometimes things can become more complicated, as shown in the following case.

In that case, the Claimant, a care home worker, was dismissed following allegations that he had been asleep at work and falsified residents’ records.

He appealed against his dismissal. He said he was sleeping during his rest break, and that he had been unable to complete the daily record sheets because of an interruption.

After an appeal hearing, the Claimant was informed by letter that his appeal had been upheld. However, the Claimant was not satisfied with the letter which only referred to the allegation that he had been asleep on duty and made no reference to the second allegation about falsifying residents’ records. He refused to return to work and instead brought a claim in the employment tribunal for unfair dismissal.

The tribunal had to decide whether the dismissal had vanished as a result of the appeal decision meaning that the Claimant could not pursue a claim for unfair dismissal.

The tribunal ruled that the appeal outcome letter failed to address matters of concern to the Claimant in relation to one of the allegations against him (that he had falsified residents’ records). As a result, the Claimant was not obliged to return to work and was entitled to treat himself as dismissed and to proceed with his claim for unfair dismissal.

The EAT upheld the care home’s appeal. Whether or not the letter was unclear, the effect of the Claimant’s successful appeal was to revoke his dismissal. He could not regard himself as dismissed and his claim for unfair dismissal had to fail.

The Court of Appeal rejected a further appeal by the Claimant, ruling that if an employee appeals, he is asking and agreeing (if successful) to be restored to his employment. The employee does not have an option whether to return to work or not if his appeal succeeds.

However, that was not the end of this case. The Court invited the parties’ submissions about whether the appeal letter was a breach of the implied term of trust and confidence, and if the Claimant might be constructively dismissed by the ‘unsatisfactory’ appeal outcome.

Comment

The decision in this case did not address 2 common situations.

First, how should employers deal with an employee who does not return to work when a dismissal has been revoked by an appeal? It is important not to do anything that might amount to  constructive dismissal claim or give rise to a new unfair dismissal claim.

Second, what if the employer decides to substitute an alternative sanction to dismissal on appeal? In that case, although the original dismissal disappears, the alternative sanction may be such that the employee can treat themselves as constructively dismissed.

(Folkestone Nursing Home Ltd v Patel)