Can the employee refuse to return to work and, if so, can they still claim unfair dismissal? What about if the appeal manager decides to demote the employee instead? The Court of Appeal provides some useful guidance on the legal consequences of a successful appeal in the case of
Patel v Folkstone Nursing Home Ltd. Facts
Mr Patel worked as a care assistant in a nursing home. In March 2014 he was charged with two disciplinary offences, said to amount to gross misconduct:
That he had been found asleep whilst on duty
That he had falsified patient records and had failed to record checks he had made.
Mr Patel attended a disciplinary hearing and argued that he had been asleep during his break – not his working hours and that it was common practice to complete patient records in this way. The employer decided to dismiss him with immediate effect on 2 April 2014. He was told that they intended to refer his conduct to the Disclosure and Barring Service (DBS) because residents had been put at risk.
Mr Patel appealed against his dismissal and the hearing took place on 8 May 2014. However, for reasons that are not explained, he was only informed that his appeal had been successful and could return to his job six weeks later on 24 June 2014. The appeal letter only referred to the allegation he had been asleep on the job. It did not mention the more serious charges or say that it had withdrawn its notification to the DBS.
Despite the successful outcome, Mr Patel was unhappy about the way in which the disciplinary process had been handled and the fact that the appeal decision made no mention of the more serious allegations. He did not return to work and issued a claim for unfair dismissal instead.
The key issue was whether Mr Patel had, in fact, been dismissed. Whilst there is no doubt that he was dismissed in March, did the successful appeal change this?
The Court of Appeal said it did. A successful appeal has retrospective effect and (in most cases) this means that the employee should have returned to work. The employee cannot treat the decision to uphold the appeal as an offer to return to work which they can accept or reject. The only exception to this is where the appeal is handled badly (even if the outcome is the one the employee wanted when they invoked it). Employers are under a duty to maintain the trust and confidence of their staff and if they breach this, and the breach is sufficiently serious, the employee can resign and claim constructive unfair dismissal (provided they have two years’ service).
The Appeal Judge in this case strongly hinted that the employer’s failure to respond to the most serious allegation (falsifying evidence and threatening to report the employee to the DBS) did give Mr Patel the right to resign and bring a constructive dismissal claim.
Motivation of the employee is irrelevant
An employee may appeal against their dismissal for reasons other than wanting to get their job back, such as to clear their name or to avoid having their compensation reduced by a tribunal if they fail to comply with the ACAS Code of Practice on discipline and grievances (which requires an employee to lodge an appeal). The Court of Appeal made it clear that even if an employee does have other motives for their appeal, if it is successful, they have a duty to return to work. If they don’t they will not be able to claim they have been dismissed, unless there are grounds for asserting constructive unfair dismissal.
Implications for employers
All disciplinary policies should give employees the right to appeal against a dismissal and this case does not alter that. If there are any lessons to be learned, it is that the procedure should be dealt with promptly and all grounds of appeal dealt with.
Here, it took the employer over two-and-a-half months from the dismissal to give Mr Patel its final decision. Employees only have three months from the termination date to take formal action if they wish to bring a claim for unfair dismissal. Time limits are strictly applied and tribunals will not excuse delay even in circumstances where the employee is waiting to receive the outcome of their appeal. To avoid losing their rights to bring a claim, employees must take action to protect their position.
We recommend that if an employee appeals against their dismissal, the employer’s policy, or letter acknowledging that appeal, makes it clear that, if successful, it will overturn the dismissal and the employee will be receive all back pay and the benefit of all other terms of their contract of employment. This will avoid any misunderstanding on the part of the employee that they can accept or reject the decision.
Some disciplinary policies provide that the appeal manager can substitute different punishments, such as demotion rather than dismissal. This will modify the usual effect of a contractual right to appeal – namely that, if an appeal is successful, the employee will be restored to the same employment relationship as before. That does not mean that the employee has the right to accept or reject the demotion and the employment relationship will continue, albeit the employee will have a different position. However, if an employer attempts to demote an employee without having a contractual right to do so, this may give the employee the right to claim constructive unfair dismissal.
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