Successful appeal meant no dismissal

3 mins

Posted on 21 Aug 2018

If an employee exercises a contractual right of appeal and the appeal is upheld, the dismissal has no effect and so the employee cannot claim unfair dismissal. 


In Patel v Folkestone Nursing Home Ltd, Mr Patel worked as a care assistant.  He faced disciplinary charges of being asleep on duty and falsifying residents’ records. Following a disciplinary hearing, both charges were upheld and he was dismissed for gross misconduct.  His employer informed him that it would provide details of the second offence to the Disclosure and Barring Service (DBS).

Mr Patel exercised his contractual right of appeal.  His employer informed him by letter that his appeal had been successful.  The letter dealt only with the first offence and found that he was actually on a break when he was asleep.  It made no mention of the other offence.  Mr Patel refused to return to work and claimed unfair dismissal.  

The tribunal considered whether there was a live dismissal when he brought his claim and concluded that there was. The employer appealed to the Employment Appeal Tribunal (EAT) which overturned the employment tribunal’s decision.  Mr Patel appealed to the Court of Appeal. 


The Court of Appeal agreed with the EAT that there was no live dismissal.  If an employee has a contractual right of appeal, it is implicit in the contract that if an appeal is pursued and is successful, then the employment relationship must be treated as having remained in existence throughout.  By including a contractual right of appeal, the employer provides the employee with an opportunity to overturn the decision to dismiss.  A successful appeal does not result in the employee having a choice whether to return or not. Both the employer and the employee are contractually bound to treat the dismissal as having no effect.  

However, the Court of Appeal did give Mr Patel the opportunity to argue that his employer’s failure to deal on appeal with the second more serious allegation and to correct the information provided to the DBS was a breach of the implied term of trust and confidence entitling him to resign and claim that he had been constructively dismissed.  It will consider that argument at a later date. 


In the absence of any provision to the contrary, the effect of an employee successfully exercising a contractual right of appeal is that they are regarded as never having been dismissed.  This means that they will be also be entitled to back pay and to the benefit of all other contractual terms, as well as having continuity of employment.  Whilst it is generally accepted that it makes no difference whether the the right of appeal is contractual or non-contractual, there is no binding case law to that effect and so the position is less clear.  

Employers should ensure that they conduct the appeal process fairly and that they consider all of the offences for which an employee was dismissed when they are deciding whether to uphold an appeal.  


Tina Wisener

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