In Patel v Folkestone Nursing Home Ltd the Court of Appeal questioned whether a successful appeal against a dismissal revived the contract of employment and reinstated the employee.
The claimant was a care assistant who was dismissed over two charges of misconduct. He appealed under a contractual procedure and was informed by letter that his appeal was successful. However, he was not told whether the allegation had been overturned. As such, the claimant refused to return to work and claimed unfair dismissal.
Writing up the case for Daniel Barnett’s employment law newsletter, Ed McFarlane, Litigator at Deminos HR, explained that at tribunal, the respondent argued that the successful appeal had re-instated the claimant, so he hadn't been dismissed. However, the tribunal rejected this, holding it should not be implied into the contract, which was silent about it, that a successful appeal resulted in reinstatement. “The Court of Appeal overturned the tribunal’s judgment, holding that in the context of an ordinary employment contract and absent some express qualification, the effect of a contractual right of appeal against dismissal is that a successful appeal revives the contract and ‘extinguishes’ the original dismissal,” said McFarlance.
Beyond this issue, the Court of Appeal invited the parties to submit whether the appeal outcome letter was a breach of the implied term of trust and confidence and whether the claimant’s case might be that he was constructively dismissed due to an ‘unsatisfactory’ appeal outcome.
