The Court of Appeal recently reiterated that the effect of a successful disciplinary appeal by an employee against his dismissal was that the dismissal effectively “vanished” and his employment was restored. He should be treated as if he had never been dismissed. It went on to suggest that an employer’s failure to address the appeal properly could amount to a serious breach of contract, entitling the employee to resign and claim constructive dismissal.

Facts

The case of Patel v Folkestone Nursing Home, concerned a contractual disciplinary procedure which failed to specify expressly the consequence of a successful appeal against a disciplinary sanction. Mr Patel had initially been dismissed on two grounds, sleeping on his break and falsifying patient records. Following his appeal, he was informed that that the decision to dismiss him had been revoked. However, the appeal and subsequent letter only addressed one of the two disciplinary allegations that had resulted in his dismissal.

Court of Appeal decision

The Court of Appeal upheld the Employment Appeal Tribunal’s previous finding that revocation of the dismissal effectively meant it “vanished”. The Judge considered it was implicit in the contract that if an appeal is pursued and is successful, then the employment relationship is to be treated as having remained in existence throughout and the dismissal is to be treated as having no effect. There was no need for any formal reinstatement or re-issuing of the employment contract.

Constructive dismissal?

However, the Judge also considered that because the employer’s letter allowing the employee’s appeal did not deal with one of the allegations against him, it was arguable that this lack of clarity and failure to resolve that issue was a breach of the implied term of trust and confidence that might justify the employee treating himself as constructively dismissed.

Comment

While this case concerned a contractual disciplinary procedure, the principles are likely to apply equally to a non-contractual disciplinary procedures. While the concept of the “vanishing” dismissal is relatively well known, employers would be well advised to spell out the consequences of a successful appeal in their disciplinary policies and procedures to avoid conflicts arising.

The interesting point in this case for employees is that the Judge suggested a failure by an employer to address all disciplinary matters in the appeal could amount to a breach of the implied term of trust and confidence. This would entitled an employee to resign and claim constructive dismissal.

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