In Patel v Folkestone Nursing Home Ltd  EWCA Civ 1689 the Court of Appeal has held that there was no dismissal where a contractual disciplinary appeal was successful.
The Court of Appeal has upheld the decision of the Employment Appeal Tribunal that there was no dismissal where an employee who, following his appeal under a contractual disciplinary procedure, was told that the decision to dismiss him had been revoked. This was despite the appeal only addressing one of the two disciplinary allegations that had resulted in his dismissal.
The Claimant was a care assistant, dismissed over two charges of misconduct. He appealed under a contractual procedure, and was told by letter that his appeal had been successful, but without being told if one allegation had been overturned. The Claimant refused to return to work and claimed unfair dismissal.
The Court of Appeal held that if an employee has a contractual right to appeal a disciplinary sanction, it is 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. The dismissal will be treated as having no effect.
However, the Court of Appeal noted the fact that the employer's letter allowing the employee's appeal did not deal with one of the allegations against him. It was held that 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. Since the employer did not appear at the hearing, the parties were invited to make written submissions as to whether the appeal should be allowed on this other basis.
In effect, this decision means that a successful appeal will revive the employment relationship and ‘wipe out’ the dismissal, leaving the employee unable to pursue any unfair dismissal claim.
This decision does serve as a reminder to employers to follow a fair procedure or address all relevant issues at appeal stage, otherwise an employee may still be able to claim that they have been constructively dismissed.