If an employee successfully appeals against dismissal where he has a contractual right of appeal, does this have the effect of “reviving“ the contract so that the employee is reinstated?
In a recent case, the Court of Appeal has held that a successful appeal does have the effect of reviving the contract, even if the contract doesn’t provide for this, which could be bad news for some employers.
In this case, the Claimant, who was called Mr Patel, was a care assistant. He had been dismissed following two charges of alleged misconduct. His contract of employment provided for an internal right of appeal. He therefore appealed against the decision to dismiss him. Following an appeal meeting, he was told that his appeal had been successful but in the letter which was sent to him he wasn’t told if one of the allegations against him had been overturned. Due to this, Mr Patel refused to return to work and instead claimed unfair dismissal in the Employment Tribunal.
When the case got to the Tribunal hearing, his employer, Folkestone Nursing Home, argued that as his appeal had been successful, this had the effect of re-instating Mr Patel so that in effect, he hadn’t been dismissed. However this argument was rejected by the Tribunal and it held that, as the contract of employment didn’t say that he would be reinstated following a successful appeal, that it should not be implied into the contract that, if his appeal was successful, that this would result in reinstatement.
The Court of Appeal did not agree with the Tribunal however. It overturned the judgment of the Tribunal. It held that, unless the contract says otherwise, the effect of a right of appeal in a contract of employment is that a successful appeal will revive the contract so that the employee is reinstated. Lord Justice Sales said “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”.
It was not quite the end of the matter though as the court has invited submissions on whether the appeal outcome letter sent by the employer was a breach of the implied term of trust and confidence and whether Mr Patel had been constructively dismissed by the appeal, the outcome of which was unsatisfactory as far as Mr Patel was concerned.
It is worthwhile noting that the case concerned a contractual right of appeal to the employee. Often disciplinary procedures are written as a policy only and not forming part of the contract of employmetn and in many cases the contract will go so far as to say that any employee handbook or disciplinary procedure does not form part of the contract. The outcome in this case may have been different if the right of appeal hadn’t been a contractual right of appeal although this is not totally clear from the decision given.
If your disciplinary procedure includes a contractual right of appeal, it is worthwhile taking legal advice on the effect of this case and possible reinstatement of an employee following a successful appeal.