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In the case of Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1843, the Court of Appeal held that an employee who was told that an initial decision to dismiss him had been revoked following his successful internal appeal had not been dismissed, and that an employment tribunal had therefore erred in concluding that it could hear his claims of wrongful and unfair dismissal.

However, the Court went on to hold that the employee was entitled to argue that the manner in which the employer dealt with the appeal, failing to address serious allegations made against the employee, was a fundamental breach of the implied duty of trust and confidence.

The facts in Patel v Folkstone Nursing Home

Folkestone Nursing Home (FNH Ltd) employed Mr Ramesh Patel (the Claimant) as a healthcare assistant. His contract of employment included a disciplinary procedure which provided for an appeal against a decision to dismiss. The Claimant was dismissed for gross misconduct in April 2014 for sleeping on duty and falsifying residents’ records. He appealed, was successful and notified in a letter that the decision to dismiss him would be revoked because, as the Claimant was on an unpaid break when asleep, he had not breached any company rules and procedures.

However, the Claimant was dissatisfied that the letter did not deal with the allegation that he had falsified records. He refused to return to work and, on 17 July 2014, presented claims of wrongful and unfair dismissal to an employment tribunal.

The decision of the Employment Tribunal

The Tribunal found that the Claimant had been dismissed, for two reasons: First, he could not be contractually bound by the outcome of his appeal as FNH Ltd’s disciplinary procedure did not make any provision for this and secondly, the ‘revocation’ of the Claimant’s dismissal was unclear. The second disciplinary allegation was not mentioned and in this respect, the Claimant’s position was also unclear; he could therefore consider himself dismissed.

The decision of the EAT

FNH Ltd appealed successfully to the EAT. It referred to the case of Salmon v Castlebeck Care (Teesdale) Limited [2014] UKEAT/0304/14/DM, where Mr Justice Langstaff held that there was no reason why it would be necessary for there to be an express revival or reinstatement of employment, since it must be implicit in any system of appeal that the appeal panel has the right to reverse or vary the original decision. The Claimant appealed.

The Court of Appeal’s decision

The Court of Appeal dismissed the appeal. Lord Justice Sales, giving the only judgment, held that it is implicit in a contractual term conferring a right to appeal against dismissal that, if an appeal is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout. The object of the appeal is that the employee is contractually entitled to ask the employer to reopen its previous decision to dismiss and to substitute a decision that there should not be a dismissal.

Sales LJ then went on to consider the poor manner in which FNH Ltd had dealt with the Claimant’s appeal. He noted that it was strongly arguable that FNH Ltd was in breach of the duty of trust and confidence in failing to resolve the more serious of the allegations against the Claimant. It was arguable that it was a breach for FNH Ltd not to withdraw the allegation of faking records and that the Claimant could potentially advance the argument that he had been constructively dismissed.

Our solicitors’ view on Patel v Folkestone Nursing Home Ltd

Caroline Lewis, a specialist employment solicitor at Redmans, commented on the case: “While this case does not break new ground, it is a clear and compelling reminder that a successful internal appeal against dismissal will make the original dismissal ‘disappear’. The contract will be revived as if no dismissal had ever taken place. Employers must take back an employee following a successful appeal, and an employee cannot choose to remain dismissed (unless there has been a fundamental breach of contract that might justify a ‘new’ claim for constructive dismissal). As the original dismissal is eradicated by a successful appeal, the employee should return to the same role on the same terms and conditions”.

The decision of the Court of Appeal in Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1843 can be found here

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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