The case of Patel v Folkestone Nursing Home Limited confirms that, where an employee appeals against his or her dismissal successfully, the effect is that both employer and employee are bound to treat the employee’s employment as having continued (notwithstanding the earlier dismissal). In practice, the dismissal is treated as having “vanished”. One consequence of the so-called “vanishing dismissal” is that a tribunal will not, ordinarily, have jurisdiction to hear any unfair dismissal claim an employee then brings.

In this update, we address the case of Mr. Patel and what it means for employers.

Mr. Patel was employed as a healthcare assistant. He was dismissed for gross misconduct for allegedly sleeping on duty and falsifying records. In the dismissal letter, his employer stated that it would be referring him to the Disclosure and Barring Service (the DBS).

Mr. Patel appealed against his dismissal. His appeal was successful, and his dismissal revoked, because it was found that he had been sleeping during an unpaid break. He had not breached any company rules or procedures. The appeal outcome letter did not address the allegation that Mr. Patel had falsified records – a very serious allegation. He therefore refused to return to work and presented claims for wrongful and unfair dismissal.

Employment Tribunal Decision

One of the first tasks of the tribunal was to determine whether or not Mr. Patel had been dismissed, and therefore whether or not it had jurisdiction to hear his claims. It concluded that he had been dismissed because (i) the employer’s disciplinary procedure was silent about appeal outcomes and (ii) the revocation of his dismissal in the appeal outcome letter was unclear and did not address the alleged falsification of records.

Mr. Patel’s employer appealed.

Employment Appeal Tribunal (EAT)

The EAT concluded that it was implicit in any system of appeal that an original disciplinary decision can be reversed or varied. It issued a statement that Mr. Patel had not been dismissed.

Mr. Patel then appealed to the Court of Appeal.

Court of Appeal (CA) Decision

The CA determined that, if an appeal against dismissal is successful, it is implicit that both the employer and employee are bound to treat the employee’s employment as continuing and remaining in existence (notwithstanding the earlier dismissal). Even if an employee does not wish to remain in employment, and may have other motives for pursuing an appeal, the effect of a successful appeal is that an employee is treated as not having been dismissed – the “vanishing dismissal”.

The same point was made very clearly in another EAT decision: “…if an employee chooses to keep the appeal alive, then he takes the risk that if he is subsequently reinstated in employment, his unfair dismissal claim will be defeated.”

However, Mr. Patel’s case was complicated by the fact that his employer had not dealt with his appeal properly – a crucial point. The CA considered that it was strongly arguable that his employer was in breach of the duty of trust and confidence in its failure to address and resolve the more serious, second allegation against Mr. Patel (and withdraw any complaint against the DBS). As such, the CA considered that Mr. Patel might be entitled to claim constructive dismissal and that he had been dismissed by the time he submitted his claim to the tribunal.

Mr. Patel and his employer were given the opportunity to make written submissions on the basis of the CA’s constructive dismissal analysis.

The case is a reminder that, generally speaking, a successful internal appeal against a dismissal by an employee means that the dismissal is treated as having “vanished”. However, employers should be cautious. If the appeal is not dealt with properly, an employee may be justified in treating himself or herself as having been constructively dismissed. As such, employers should ensure that they deal with appeals properly. All relevant points raised by an employee on appeal should be addressed. Failing to address and resolve points, particularly those that relate to very serious allegations that have been made against an employee, is likely to cause trouble down the line.

If employers take nothing else from this case, they should ensure that they do not leave points of appeal ‘up in the air’ when drafting appeal outcome letters. A good appeal process can go a long way to rectifying earlier procedural issues. However, if an appeal process is not conducted properly, employers may find themselves having to explain their position before a judge.