In Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689 the Court of Appeal gave clarification on the correct approach to a “fudged” appeal against a dismissal. Was there a dismissal or not?

The employee was a care assistant at the employer’s nursing home. The disciplinary procedure was contractual and provided for an appeal against disciplinary action. He was dismissed for gross misconduct for (a) falling asleep and (b) falsifying records and told he would be reported to the regulator.

He appealed, and the appeal was allowed on (a) but not on (b) and nothing was said about the report to the regulator but he was told he was expected to return to work. Despite further communications between them, the employee considered the responses unsatisfactory and treated himself as dismissed.

The ET determined that he had been dismissed partly because the terms governing appeals were silent as to the consequences of a successful appeal and partly because the appeal outcome letter failed to address the more serious allegation.

The EAT reversed that decision having regard to Salmon v Castlebeck Care (Teesdale) Ltd [2015] ICR 735 which supported the argument that a successful appeal resulted in the dismissal being overturned without the need for the contract to say so.

The Court of Appeal upheld the EAT’s decision Sales LJ stated:

“…it is clearly implicit in a term in an employment contract conferring a contractual right of 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. This is not a matter of implying terms, but simply the meaning to be given to the words of the relevant contract, reading them objectively.”

Potential constructive dismissal?

However, the Court of Appeal also considered that the manner in which the appeal was conducted and communicated was so unsatisfactory that it was strongly arguable that it amounted to a repudiatory breach which the employee was entitled to accept by resigning and claiming wrongful and unfair dismissal.

Non-contractual appeals?

In most of the reported cases on this issue there has been a contractual right of appeal and the analysis, as in Patel, has been based on the construction of the terms governing appeals against dismissal. What if there is a right of appeal but it is not contractual ? What if there is no provision for an appeal but the employee appeals and the employer allows the appeal ? Does that make any difference?

It is suggested that the answer to that is no. In Howgate v Fane Acoustics Ltd [1981] IRLR 161, Kilner Brown J, sitting in the EAT, considered that given, the requirement to give statutory particulars of an appeal against disciplinary sanction (now S.3(1)(b)(i) ERA 1996) this was sufficient whether contractual or not. He said:

“… the situation with regard to a person who appeals against a decision to dismiss him is that the intervening period has to be treated as one of suspension and the ultimate decision of the appeal process relates back to the date on which the purported dismissal was effected. If the man wins, he goes back into employment. If the man loses, he is deemed to have been dismissed on the original date.”

That clearly suggests a non-contractual appeal has the same effect as a contractual appeal although express provisions may give the appellate body greater powers of disposal (as was the case in Roberts v West Coast Trains Ltd [2005] ICR 254).

Similarly if there is no appeal provision at all, the same effect is achieved by an informal appeal ? The employee is inviting the employee to revoke the termination and, if the employer does so by allowing the appeal prior to the employee revoking the invitation, then as a matter of contract law, the parties are entitled to treat the contract as having not been terminated. A notice of termination can always be revoked by consent. This seems to be so even if the by the time the appeal is allowed, notice has expired or the termination was without notice. It would seem that the proper approach is not to treat there as being a new contract but a continuation of the original contract. In Salmon Langstaff J said:

“Where the effect at common law, contractually, is that a decision has been taken to allow the appeal, it seems to me that it is a decision which, on the law as I have set it out by reference to Roberts, GS4 and McMaster, has the effect of reviving the contract, subject only to there being some contractual term or provision which prevents it.”

Russell Bailey
Employment Group