Employment Update: Is it appealing to appeal?

Morrish SolicitorsEmployment, Site News

In the recent case of Patel v Folkestone Nursing Home Limited [2018] EWCA Civ 1689 the Court of Appeal have delved into the surprisingly complex and messy area concerning appeals against dismissal or disciplinary sanctions.

The Claimant was a care assistant dismissed over two charges of misconduct. As is often the case, his written contract of employment identified that the disciplinary procedure contained within his employer’s Employee Handbook was incorporated into his contractual terms and conditions. The Handbook identified that he had “the right to lodge an appeal”. He did so and following appeal, he was told that his appeal was successful but there was no mention of whether one of the allegations against him had been overturned. He refused to return to work and brought an unfair dismissal claim.

At the ET hearing, the employer unsuccessfully argued that the successful appeal had re-instated him and so he had not been dismissed. The ET found he had been unfairly dismissed. This was over-turned on appeal to the Employment Appeal Tribunal (EAT), and following further appeal, the Court of Appeal has reviewed all the case authorities and sided firmly on the side of the EAT, confirming that the ET got it wrong.

The Court of Appeal has identified the following key principles, and I quote Lord Justice Sales directly:

“it is implicit in a term in an employment contract conferring a contractual right to appeal against disciplinary action taking the form of dismissal that, if an appeal is lodged, pursued to its 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 including a contractual right of appeal in the employment contract, the employer makes available to the employee a facility to seek to overturn the disciplinary decision made against him and to have the dismissal treated as being of no effect. If the appeal is successful, then subject to any other contractual provisions, the employee is entitled to be treated as having never been dismissed, to be paid all back pay and to have the benefit of all other terms of his contract of employment through the relevant period and into the future.

Conversely, if the employee exercises his right of appeal under the contract and does not withdraw the appeal before its conclusion, it is obvious on an objective basis that he is seeking to be restored to his employment and is asking and agreeing (if successful) to be treated as continuing to be employed under his contract of employment for the interim period since his previous dismissal and continuing into the future, so that that dismissal is treated as having no effect. It is not a reasonable or correct interpretation of the term conferring a right of appeal that a successful appeal results in the employee having an option whether to return to work or not.

If an appeal is brought pursuant to such a term and is successful, the employer is contractually bound to treat the previous dismissal as having no effect and the employee is bound in the same way. That is inherent in the very concept of an appeal in respect of a disciplinary dismissal”.

The Court of Appeal took into account the fact that an employee may lodge an appeal not to get his or her job back but for other reasons – for example, to clear his or her name so as to improve the chances of finding other work or so as not to lose up to 25% of any compensation (for non-compliance with the ACAS Code of Practice on Disciplinary and Grievance Procedures).

There is a little twist in this tale: the Court of Appeal said that the Claimant might have had a claim for constructive dismissal, because of the employer’s failure to address questions about the validity of the allegations made against him.  The Claimant might therefore have another bite at the cherry – but the main gist of the case is about the effect of a successful appeal.

So, an important decision and one that any employee who wishes to lodge an appeal should reflect on.