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The "vanishing" dismissal – how a successful appeal revived the employment relationship

31 August 2018
In Patel v Folkestone Nursing Home Limited [2018] EWCA Civ 1689, Mr Patel's contract of employment incorporated the Employee Handbook, which included a section on disciplinary procedure.

In Patel v Folkestone Nursing Home Limited [2018] EWCA Civ 1689, Mr Patel's contract of employment incorporated the Employee Handbook, which included a section on disciplinary procedure.

Further to allegations against Mr Patel that he had slept on duty and falsified residents' records, Mr Patel was dismissed from his employment with Folkstone Nursing Home Limited ("the Home") on the grounds of gross misconduct in April 2014. Mr Patel appealed against the decision following the Home's internal procedures.

Mr Patel was successful on his internal appeal and the Home wrote to confirm this in June 2014, also stipulating a return to work date would be arranged. However, the letter only confirmed that he had been successful in respect of the allegation of sleeping whilst on duty and made no mention of the second allegation in respect of falsifying residents' records. As a result, Mr Patel failed to return to work, treating himself as dismissed.  He subsequently brought claims for wrongful and unfair dismissal.

The Employment Tribunal
The Employment Tribunal ("ET") identified as a preliminary issue whether there was a "live" dismissal at the date Mr Patel pursued his employment claims. The ET decided there was and that the successful appeal did not revive the employment contract between Mr Patel and the Home. Further, the ET held that the outcome letter sent in June 2014 was inadequate as it did not deal with the second allegation against Mr Patel i.e. falsification of residents' records.

The Home appealed to the Employment Appeal Tribunal ("EAT")

On appeal, the EAT found that the letter sent to Mr Patel in June 2014 meant there was no "live" dismissal at the time Mr Patel pursued his claims. This followed the ruling as outlined in Salmon v Castlebeck Care (Teeside) Limited (In Administration) & others 2015 ICR 735 which found that any success on appeal against a dismissal decision meant that the decision was one in which dismissal did not take effect though some lesser sanctions might.

Mr Patel appealed to the Court of Appeal on the basis that the EAT had erred in finding it was inherent in the provision of a contractual appeal that success of such appeal would automatically revive the employment contract.  He argued that the EAT was therefore wrong to reverse the ET's decision.

Court of Appeal
Mr Patel's appeal was dimissed. The Court of Appeal found that the EAT had not erred in their finding and that the case of Salmon was the correct approach to follow. It was held that it was implicit that where a contractual right of appeal existed (which Mr Patel had utilised), any success of such appeal would require both parties to treat the employment relationship as existing throughout the process as if it had not terminated. 

This case makes clear that the inclusion of a contractual right of appeal in the employment contract gives an employee a facility to seek to overturn a disciplinary decision made against him which could result in a dismissal ceasing to have effect.

It is important to note however that often disciplinary procedures are not incorporated into the contract of employment and, as such, an alternative outcome may result from a different set of circumstances.

*** NB: Since writing this blog, this case has been further heard in the Court of Appeal on Mr Patel's written submissions against the EAT's decision that there had been no dismissal. In Patel v Folkestone Nursing Home Limited [2018] EWCA Civ 1843, the parties were invited to make further submissions as to whether an appeal by Mr Patel should succeed on an alternative analysis to that of the contractual right of appeal considered at the first Court of Appeal hearing. 

In this subsequent appeal, the Home's unsatisfactory outcome letter of June 2014 was deemed to have breached the implied duty of trust and confidence inherent in the employment relationship by failing to address the second ground of Mr Patel's internal appeal against his "original" dismissal i.e falsifying residents' records. Further, the Home had failed to respond to Mr Patel when he sought clarification upon his successful appeal as to whether the Home's complaint to the Disclosure and Barring Service ("DBS") had been withdrawn.

The ET had addressed this issue in its original judgment however the EAT had overturned the finding that a live dismissal had occurred. This failed to take account whether Mr Patel was entitled to treat himself as being constructively dismissed at such time.

Further Reading