In the case of Piper v Maidstone & Tunbridge NHS Trust, the NHS trust employer dismissed the claimant, who had been employed as a chaplain, for gross misconduct. The employee appealed against his dismissal internally and was successful in that the internal appeal panel overturned his dismissal and instead substituted an alternative sanction short of dismissal, particularly a final warning, a demotion and a transfer of work location.

The employee rejected this appeal outcome and brought proceedings for unfair dismissal in the employment tribunal. The NHS trust resisted the claim on the basis that the original dismissal had been erased by the appeal outcome. The employment tribunal agreed with this and rejected the claimant's claim of unfair dismissal on the grounds that there was no dismissal.

However, this was overturned by the Employment Appeal Tribunal who found that the NHS trust had no power within their internal policies to impose the lesser penalty without the consent of the claimant. Therefore, if the claimant had agreed to accept the lesser sanctions, the dismissal would have been expunged. However, as the claimant had not accepted the alternative sanctions, the dismissal remained and his claim of unfair dismissal fell to be heard on the merits of the case.

It is obviously right that if an internal appeal panel feels that a decision to dismiss has been wrongly made, there is the opportunity to remedy any defect and this may include substituting an alternative sanction. However, this case is a reminder that employers should consult their disciplinary policies to ensure that appeal panels have the power to take these steps. If not, consideration ought to be given to amending the policy. In general, an offer of reengagement by way of an appeal outcome (ie, employment on different terms) will not expunge the earlier dismissal, whilst reinstatement (employment on the same terms and conditions as before) should have the effect of expunging a decision to dismiss provided the relevant policy provides for this.