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Education e-briefing - Case Update

  • United Kingdom
  • Education - Briefings

20-07-2018

Welcome to our education employment team’s latest case update.

This update highlights some useful, practical employment law decisions which have emerged from the courts in the last few months concerning:

1. The need for justification in issuing warnings for disability related sickness absence

2. The importance of an appeal process when dismissing an employee over a perceived lack of right to work in the UK

3. Consideration of part-time working for unfair dismissal and disability discrimination purposes

4. Can an employee who is successful on appeal still claim unfair dismissal?

The need for justification in issuing warnings for disability related sickness absence

Background

The issue of managing sickness absences can be a tricky one for institutions, including consideration of whether any trigger points need to be extended or disapplied where the absences are due to disability. Even, however, where such absences greatly exceed the trigger point, taking action in a disability case can be far from straightforward.

Whilst the majority of claims relating to sickness absence are on the basis of a failure to make reasonable adjustments, institutions need to be alive to the possibility of claims being brought as well, or instead, as discrimination arising from disability.

The Equality Act 2010 introduced the concept of discrimination arising from disability. This occurs where the employer treats an individual unfavourably because of something arising in consequence of their disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Taking action against an employee as a result of disability-related absences will inevitably amount to unfavourable treatment arising from their disability, so the key issue will be whether such action (such as a warning or dismissal) can be justified.

The recent case of DL Insurance Services Ltd v O'Connor is a useful reminder that the burden is on the institution to show that its treatment was justified and that will involve consideration of the particular circumstances of the case.

The facts

Mrs O’Connor commenced work for DL Insurance Services Ltd on 6 June 2005. It was accepted by her employer that she was disabled for the purposes of the Equality Act 2010. In 2009 she asked to work flexibly and the employer made adjustments to her role.

DL Insurance Services Ltd had a sickness absence policy which contained a process for reporting absences and stated that in some cases absence levels could lead to disciplinary action. The policy stated that its purpose was to encourage early recognition of health problems and to help manage absence.

The employer’s disciplinary policy contained various sanctions for both short and long-term absence. From 2013 Mrs O’Connor’s sickness absences put her above the trigger points and at various return to work interviews in this period she was told that no further action would be taken, but if the absence levels went up the employer could consider taking such action.

There was an increase in Mrs O’Connor’s absences in 2015 and 2016 and on 14 March 2016 she was told that there would be a meeting under the disciplinary procedure in relation to her absences between April 2015 and March 2016. The disciplinary hearing took place on 4 April 2016. By this point Mrs O’Connor’s absence was 65 days in the 12-month rolling period, some six times over the trigger point. At the disciplinary hearing Mrs O’Connor’s trade union representative asked whether the trigger points were adjusted for people with long-term disabilities and why the employer had not referred Mrs O’Connor to occupational health or asked for health records from her GP.

The disciplining officer adjourned to consider her decision. She did not directly answer the questions of the trade union representative. She accepted that all but one of the absences which she took into account were disability-related. She asked for guidance from human resources but made no referral to occupational health. Her decision was to give Mrs O’Connor a written warning for 12 months which meant that her sick pay was suspended during the currency of the warning.

Mrs O’Connor appealed against the decision but her appeal was rejected. She then brought a claim for disability discrimination arguing that she had been subjected to discrimination arising from disability in respect of two matters, namely the failure to refer her to occupational health and the issuing of the written warning.

The decision

The Employment Tribunal rejected her claim in respect of the failure to refer to occupational health but upheld her claim in respect of the warning.

As far as the warning was concerned, the ET concluded that Mrs O’Connor had been treated unfavourably because of something arising in consequence of her disability as it was evident that the written warning was imposed because of her disability-related sickness and the warning put Mrs O’Connor at risk of further disciplinary action and at the risk of losing pay during the currency of the warning.

Turning to whether the employer could justify the treatment as a proportionate means of achieving a legitimate aim, the ET accepted that ensuring adequate attendance levels and seeking to improve Mrs O’Connor’s attendance levels were both legitimate aims.

However, the EAT did not agree that the issuing of the warning was a proportionate means of achieving these aims as it took the view that neither the disciplinary officer or the appeal officer could explain how they considered that a written warning would improve Mrs O’Connor’s absences. At the ET hearing the disciplinary officer had said that she had taken into account the trigger levels; her knowledge of the business and how absence could affect the business, namely that other staff might have to take over Mrs O’Connor’s duties or have to be paid overtime to do them and, if so, the impact on service levels.

The ET concluded that although her purpose in issuing the warning was to improve Mrs O’Connor’s attendance levels, she had been unclear in giving evidence how in this case, given that the absences were genuine and due to a disability, improvement could occur. Her response was that it was generally her experience that the issue of a warning and a cessation of sick pay "dramatically improved" attendance levels but she had had no conversations with the Mrs O’Connor’s line manager about the impact on the team or on service levels before taking action.

The ET also stated that had the employer referred the case to occupational health and/or obtained medical advice, "it may well have been able to justify its actions depending on what advice was received".

DL Insurance Services Ltd appealed against the ET’s decision that the action had not been proportionate.

The EAT acknowledged that the employer had adopted over many years a very careful approach and had treated Mrs O’Connor with great sensitivity and sympathy, effectively permitting her to have much longer periods of sickness absence than the strict terms of its policy would have allowed. However, it rejected the appeal. It concluded that the ET had specifically asked the employer's witnesses to explain how their aim would be achieved by giving Mrs O’Connor a written warning and they were unable to satisfy the ET that the warning would have the effect for which the employer contended in the specific case. Therefore the employer had failed to discharge the burden of proof of showing that the issuing of the warning was justified.

Conclusion

Although the absence levels in this case were considerably above the employer’s trigger point this case demonstrates that in itself that fact is not enough to successfully defend a claim of discrimination arising from disability.

It is crucial in such cases for institutions to identify its legitimate aim(s) and why it is appropriate to take action in the specific circumstances in each case. As a minimum evidence should be obtained by the disciplinary officer as to the impact of the absence on the department or team concerned prior to the decision being taken. Had that happened in this case the outcome may have been different. This case also reminds institutions of the importance of obtaining occupational health advice in appropriate cases.

The importance of an appeal process when dismissing an employee over a perceived lack of right to work in the UK

Background

Institutions are required to check that employees have the right to work in the UK and to carry out the type of work in question. This check must be carried out before that individual commences work. Where the employee produces evidence of their right to work being time-limited (such as those employed under a Tier 2 visa), then it is necessary to carry out a follow-up check prior to that right expiring.

Where an institution employs an individual who does not have the right to carry out the work in question, the institution is liable for a civil penalty of up to £20,000 per worker and, if it knows or has reasonable cause to believe that it is illegal to employ the worker, the institution commits a criminal offence punishable by up to five years imprisonment and/or an unlimited fine. In addition, where (as is likely to be the case) the institution is a registered sponsor under Tiers 2 and/or 5 the imposition of a civil penalty could well lead to the sponsor licence being revoked, meaning that the institution would no longer be able to employ or recruit international staff who need a Tier 2 or 5 visa to work in the UK. The loss of this licence could also impact on the institution’s Tier 4 sponsor licence and its ability to teach international students needing a Tier 4 visa to study in the UK.

Consequently, institutions may feel under some pressure to not recruit or dismiss staff where it is concerned as to whether they can work in the UK. However, dismissing an existing member of staff where there is a belief that they no longer have the right to work at the institution does, where the individual has been employed for 2 years or more, raise the risk of an unfair dismissal claim. On the face of it there should be little problem where the individual does no longer have the right to work but what if they do but the institution thinks they don’t? In such a situation the potentially fair reason for dismissal would be “some other substantial reason”. However, the institution must genuinely believe that the employee no longer had the right to work in the UK and act reasonably in coming to this conclusion, including following a fair process.

The importance of an appeal in this process was considered in the case of Afzal v East London Pizza Ltd t/a Dominos Pizza

The facts

Mr Afzal commenced employment with Dominos Pizza on 27 October 2009. Mr Afzal was born in Pakistan and was married to an EEA national. He had the right to apply for permanent residence to remain in the UK after spending five years in the UK as the direct family member of an EEA national. His employer believed that Mr Afzal needed to do this by 12 August 2016, in which case he would continue to be able to work pending the determination of his application.

On 3 June 2016 and 15 July 2016 the employer wrote to Mr Afzal telling him that he should present evidence that he had made an in-time application and should do so before 11 August to avoid last minute problems. No evidence was received at this point.

Late in the afternoon on 12 August 2016 Mr Afzal sent to the employer an email with two attachments which (he said) contained evidence of the application. However, Dominos Pizza could not open the attachments to the email. Therefore as it did not have any evidence that an in-time application had been made before the expiry of 12 August and being concerned to avoid any risk to it that might arise from continuing to employ Mr Afzal, it posted a notice of dismissal to him on 12 August 2016 which he received on 15 August 2016. No procedure was followed prior to dismissal and Mr Afzal was not given any right of appeal.

Following the dismissal Dominos Pizza accepted that Mr Afzal had in fact made an application for permanent residence within time and therefore at the time of dismissal did in fact have the right to work. It offered to re-engage Mr Afzal as a new starter without continuity of employment. He declined the offer and brought a claim of unfair dismissal.

The decision

The Employment Judge concluded that the reason for dismissal was some other substantial reason, namely that Dominos Pizza genuinely believed that Mr Afzal’s employment was prohibited by statute. The Employment Judge found that it was reasonable for the employer to hold this belief and that it was reasonable for it to act decisively on 12 August 2016 as a result of the fear of exposure to criminal and civil penalties, especially bearing in mind the advance warning which had been given to Mr Afzal.

In relation to the appeal, the Employment Judge agreed with the employer’s argument that in this case there was nothing to appeal against as the test which Dominos Pizza had to apply was whether, before the date of the expiry of Mr Afzal’s permission to work in the UK, it had reasonable grounds for believing that Mr Afzal had made a valid application for an extension. Therefore once the date had passed, there was no basis for Dominos Pizza to “back calculate or back-fill” a belief it did not have on 12 August 2016. In those circumstances he concluded that it was not unfair to fail to offer a right of appeal in the dismissal letter.

Mr Afzal appealed to the Employment Appeal Tribunal arguing that the Employment Judge had erred in law in concluding that the dismissal was fair notwithstanding that the employer offered no right of appeal against its decision to dismiss.

The EAT pointed out that whether a dismissal is unfair is to be judged on the whole process, including any right of appeal, unless an employer acted reasonably in taking the view that, in the exceptional circumstances of the particular case, an appeal would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with.

The EAT concluded that although Dominos Pizza was justified in dismissing Mr Afzal urgently on 12 August 2016 because it did not have evidence that he was entitled to work in the UK, in fact this belief was wrong. Therefore, if an appeal had been offered and Mr Afzal had produced evidence which had satisfied the employer that he was entitled to work, it could immediately have rescinded the dismissal without fear of prosecution or penalty.

The EAT accepted Mr Afzal’s submissions that this could have happened during an appeal process in various ways:

• Mr Afzal could have provided the requisite documents himself demonstrating the in-time application;

• the employer might have accepted the word of a solicitor, as it did in the case of an earlier employee who had not produced documentary evidence; or

• the employer might have obtained the relevant number from the Claimant and then made its own enquiry of the Home Office Employer Checking Service.

Consequently, the EAT allowed the appeal. Whilst it believed that in the circumstances of the case the dismissal ought to be held to be unfair in the absence of an appeal, as that involved some degree of judgment the EAT would not substitute its own decision and remitted the matter for it to be considered by the same Employment Judge.

Conclusion

Dealing with the issue of right to work can be a difficult one for employers with the maintenance of the sponsor licence paramount. It is right that institutions will err on the side of caution where satisfactory evidence is not produced that an application to maintain the right to work has been made in time.

In our experience, institutions will commonly provide a right of appeal in such circumstances but this case is a reminder of the importance of doing that.

Indeed in its concluding remarks the EAT stated that it is good employment relations practice for an employer in circumstances of this kind to offer an appeal, as when a time-limited right to work expires and a further application has to be made this is an anxious time both for employer and employee. In the EAT's view difficult technical questions could arise at such a time as relevant documents may be difficult to find and the Employer Checking Service is not always fully informed or up to date. Therefore, affording an appeal provides an opportunity for matters to be considered again rather more calmly than could be done as the time limit expired.

Consideration of part-time working for unfair dismissal and disability discrimination purposes

Background

Institutions which are considering dismissing an employee due to sickness absences need to bear in mind the risk of claims of unfair dismissal and (where the sickness is due to a disability) of disability discrimination. It is perfectly possible to fairly dismiss employees for sickness absences, provided that a fair process has been followed and it is reasonable for the institution to decide that dismissal is the appropriate step to take, either because it has followed a staged warning process or the employee is on a long term absence with no likely prospect of return in the foreseeable future.

Even where the sickness is disability-related the institution can dismiss without that step amounting to an act of discrimination. In such circumstances, however, it will need to be able to justify the dismissal.

Alternatives to dismissal, such as part-time working or altered hours/duties, will have to be considered where appropriate. Even where there is medical evidence that the employee could work with such alterations an employer is not obliged to offer continued employment on that basis but it will need to be able to provide evidence that it gave the matter proper consideration and explain why it was not appropriate.

The case of Dr J Ali v Drs Torrosian, Lechi, Ebeid and Doshi t/a Bedford Hill Family Practice considers the obligation to explore alternatives both for unfair dismissal and disability discrimination purposes and the point at which the decision needs to be justified.

The facts

Dr Ali commenced worked as a GP at Bedford Hill Family Practice. He commenced employment on 1 January 2011. On 9 November 2014, he was signed off work after suffering from a heart attack and remained off work until his dismissal on 16 November 2015.

On 14 July 2015, Dr Ali’s employers had written to his treating physician requesting a medical report and advice on any measures that might be taken to facilitate his return to work. The medical advice - received from Dr Ali’s GP and his treating cardiologist - was that it was unlikely that Dr Ali would ever be able to return to work full-time, although he would be in a position to return to part-time work on a phased basis.

On 27 September 2015, Dr Ali contacted the Practice to say he was fit to return and asked for their proposals. He was invited to a medical capability meeting which took place on 8 October 2015. At that meeting Dr Ali agreed with the assessment that he would not be able to return to full-time employment and he advised the Practice that he needed to take further sick leave due to a shoulder condition. There was also some discussion about proposals for future adjustments to Dr Ali’s hours and duties.

The following day, Dr Ali submitted a doctor's certificate signing him off work from 1 October to 15 November 2015 due to his shoulder condition and because he was under cardiac review. On 16 November 2015, the Practice wrote to Dr Ali informing him that he was to be dismissed with immediate effect, on grounds of capability due to his inability to return to full-time work and explaining why the adjustments proposed to his duties were not feasible.

Dr Ali brought claims of disability discrimination (direct discrimination, failure to make reasonable adjustments and discrimination arising from disability) and unfair dismissal.

The decision

The Employment Tribunal rejected his claims of disability discrimination. In relation to the claim of discrimination arising from disability the ET concluded that whilst Dr Ali had been treated unfavourably and that the dismissal arose in consequence of disability, the treatment was justified as the Practice had demonstrated a legitimate aim, namely the "need to ensure that the best possible care was provided to patients" and that the dismissal was reasonably necessary to achieve that aim given the impact of Dr Ali's continued absence on the Practice, financially and operationally.

As far as the unfair dismissal was concerned, the ET accepted Dr Ali had been dismissed for a reason related to his capability - his continued unfitness to carry out his full-time role as a GP - but found the dismissal had been procedurally unfair as there had been no meaningful consideration or consultation on alternatives to dismissal, in particular, the possibility of a return to work part time.

Given, however, that in fact Dr Ali had remained signed off after dismissal, the ET concluded that, had Dr Ali not been dismissed when he was, it would have become apparent very quickly that his return to work, on any basis, was not imminent and the Practice could have dismissed him fairly at the end of December 2015. As a result the ET made a basic award but no compensatory award.

Dr Ali appealed against the ET’s decision to reject his claim of discrimination arising from disability. He argued that the ET erred in concluding that dismissal was a proportionate response given that the less discriminatory and more proportionate approach - namely the offer of part-time work, as opposed to dismissal - was not only feasible and operationally possible and that the Practice had accepted in evidence at the ET that it would have been possible for Dr Ali to work four sessions on a permanent basis, upon his return, albeit not on the terms he had proposed.

The EAT said it was apparent that the ET in this case was aware of the test it was required to apply in relation to the issue of justification as it had reminded itself that it needed to ask whether the stated aim could reasonably have been achieved by a less discriminatory route. The ET had concluded that the Practice had already experienced a significant impact from Dr Ali’s absence, both financially and operationally; that continuity of patient care had suffered and that the Practice had been unable to recruit a permanent replacement while Dr Ali remained employed without indication as to when he would return. Whilst these were all highly relevant factors, the ET had not considered whether the Practice might have been able to address these issues by accepting Dr Ali back on a part-time basis.

Given that at the time of dismissal Dr Ali was saying that he would be able to return on a part-time basis and had provided medical evidence to support this view, that was a relevant alternative to dismissal. Therefore, the failure by the ET to consider whether the possibility of working part-time meant that the decision to dismiss Dr Ali was not proportionate and therefore could not be justified undermined the ET’s decision.

In upholding the appeal the EAT pointed out that whilst the fact that Dr Ali continued to be signed off as unfit to work after his dismissal was relevant to any question of compensation, the issue of justification had to be assessed at the relevant time, namely the date of dismissal, rather than with the benefit of hindsight.

The EAT rejected Dr Ali’s argument that the EAT should substitute a decision that the dismissal was discriminatory but instead it remitted the case to the same ET for reconsideration of the question of proportionality.

Conclusion

Although the tests for unfair dismissal and justification under disability discrimination are different, this case is a useful reminder that a failure to properly consider part-time or alternative employment in a sickness case will leave an institution at risk of both unfair dismissal and disability discrimination findings and that whilst evidence of what happens after dismissal will be relevant for compensation, it cannot justify the original decision.

Can an employee who is successful on appeal still claim unfair dismissal?

Background

Where an employee successfully appeals against a decision to dismiss, the usual outcome will be that the employee is reinstated. What is the position, however, if the employee decides that they will not accept reinstatement but instead wishes to proceed with an unfair dismissal claim?

This issue was originally considered by the Court of Appeal in the 2004 case of Roberts v West Coast Trains Ltd. In that case West Coast Trains summarily dismissed Mr Roberts for gross misconduct. Its disciplinary procedure formed part of his contract and specifically stated that a number of options were available on appeal, including demotion. On appeal, Mr Roberts' dismissal was reduced to a demotion and the period between the original dismissal and appeal treated as one of suspension without pay.

Mr Roberts never returned to work and pursued his claim for unfair dismissal on the basis that his employment had been terminated by his dismissal and the effect of the decision on appeal was to offer him a new contract, which he had chosen not to accept. The Court of Appeal concluded that Mr Roberts not been dismissed by his employers, so as to entitle him to pursue a complaint of unfair dismissal, on the basis that where a contractual disciplinary procedure permits an employer, on appeal, to impose the sanction of demotion in place of an earlier decision to dismiss, that demotion does not involve the termination of the existing contract of employment or the entering into of a new contract. Instead, the effect of the decision on the appeal is to revive retrospectively the contract of employment terminated by the earlier decision to dismiss, so as to treat the employee as if he had never been dismissed.

Is the position any different, however, where the procedure does not specifically state what the outcome of an appeal may be?

This point, and the possibility of an employee instead being able to claim constructive dismissal where they are unhappy with the outcome of an appeal (despite the appeal being upheld), has been considered by the Court of Appeal in the case of Patel v Folkestone Nursing Home Ltd.

The Facts

Mr Patel commenced employment with Folkestone Nursing Home Ltd in January 2008 as a care assistant. His contract of employment incorporated the Employee Handbook which included a section setting out the disciplinary procedure. This procedure stated that employees had the right to lodge an appeal in respect of any capability/disciplinary action taken against them.

In March 2014 Mr Patel was charged with two disciplinary offences, said to amount to gross misconduct. These were, firstly, that he had been found asleep whilst on duty and, secondly, that on the night of 21 March 2014 he had falsified the records of certain residents at the care home by pre-recording that they had slept through the night and had also failed to record the checks he had made in respect of them at particular times during the night.

Mr Patel argued, on the first count, that he had been asleep during his break, and not during his working hours and, on the second, that this method of filling in the resident records was common at the nursing home and had in the past been signed off by senior managers without criticism.

Following a disciplinary hearing on 28 March 2014 Mr Patel was dismissed with immediate effect and without notice by way of letter dated 2 April 2014 stating that both charges had been found to be proved and that they constituted gross misconduct. The employer also informed Mr Patel that, in relation to the second charge, it would refer his name to the DBS as it believed residents had been put at risk by his actions in failing to maintain complete and accurate records.

Mr Patel appealed in relation to both charges against him. Following an appeal hearing on 8 May 2014, the employer wrote to Mr Patel on 24 June 2014 informing him that his appeal had been allowed. However, the letter only referred to the first charge, stating that the finding on the appeal was that Mr Patel had indeed been asleep during an unpaid break, as he had claimed, and that this was not in breach of any company rule or procedure. This letter did not mention the second charge, make any substituted finding in relation to that charge or say whether any notification to the DBS had been made or, if so, withdrawn. The letter stated that the employer would contact Mr Patel as soon as possible to arrange a date for him to return to work.

Mr Patel was not happy about the absence of any wording concerning charge two and was also unhappy about the way in which the disciplinary procedure (including the appeal) had been handled by the employer. Despite subsequent exchanges with the nursing home, Mr Patel considered he did not receive satisfactory responses about these matters. He therefore did not return to work, taking the view that he was not obliged to do so and could treat himself as having been dismissed.

Mr Patel commenced proceedings in the Employment Tribunal claiming unfair and wrongful dismissal.

The Decision

At the ET, the nursing home argued that Mr Patel could not claim unfair dismissal as the dismissal was not effective at the date the claim had been presented as it had been overturned on appeal. The nursing home referred to the decision in Roberts v West Coast Trains Ltd.

The ET, however, distinguished Roberts on the basis that in the present case the contractual terms governing the right of appeal were silent as to the consequences of a successful appeal and no relevant additional terms could be implied into the contract to say what the consequences should be. As a result the successful appeal did not have the effect of reviving Mr Patel’s contract of employment so as to prevent him from being entitled to claim that he had been unfairly and wrongfully dismissed.

In addition the ET held that Mr Patel had been dismissed notwithstanding the outcome of the appeal, as if the employer was going to revoke Mr Patel’s dismissal it needed to address charge two, which was the more serious allegation, so that Mr Patel knew where he stood on it. The ET accepted the evidence given on this point at the hearing by the appeal officer, namely that he came to the conclusion that this conduct was not as serious as it had appeared at first, in that Mr Patel had not made up false entries in the residents' records of events and that in light of Mr Patel’s good employment record it was not a matter which merited dismissal. However, the appeal officer did not tell Mr Patel this and the letter of 24 June 2014 did not tell Mr Patel that the second allegation too had been dismissed or what had happened in relation to the DBS notification.

The nursing home appealed against the ET’s decision. Before the EAT the employer argued that the decision by the EAT in the 2015 case of Salmon v Castlebeck Care (Teesdale) Ltd was authority for the argument that there was no requirement for the appeals procedure expressly to give the right to reinstate or impose any particular sanction. The EAT in Patel agreed with this and overturned the decision of the ET, concluding instead that as a result of the successful appeal there had been no dismissal.

Mr Patel then appealed to the Court of Appeal. The Court agreed that the EAT had been correct to find that the initial dismissal had been revoked by the appeal.

In coming to this decision the Court made a number of key points:

• it is clearly implicit in a term in an employment contract conferring a contractual right to appeal against dismissal that, if an appeal is lodged, pursued to its conclusion and is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence

• this was not a matter of implying terms, but simply the meaning to be given to the words of the relevant contract, reading them objectively

• by including a contractual right of appeal in the employment contract, the employer makes available to the employee a facility to seek to overturn the disciplinary decision and to have the dismissal treated as being of no effect

• if the appeal is successful, then subject to any other contractual provisions, the employee is entitled to be treated as having never been dismissed, to be paid all back pay and to have the benefit of all other terms of his contract of employment through the relevant period and into the future

• if an employee exercises their right of appeal under the contract and does not withdraw the appeal before its conclusion, it is obvious that they are seeking to be restored to his employment and asking and agreeing (if successful) to be treated as continuing to be employed under their contract of employment, so that that dismissal is treated as having no effect

• it is not a reasonable or correct interpretation of the term conferring a right of appeal that a successful appeal results in the employee having an option whether to return to work or not

• if an employee exercises their right to appeal and chooses to keep the appeal alive, then they takes the risk that if they are subsequently reinstated in employment, their unfair dismissal claim will be defeated

• there is no need for the contractual procedure to specifically state that reinstatement is an option on appeal

However, this did not dispose with the matter as the Court of Appeal took the view that it was strongly arguable that the letter upholding the appeal was unacceptable and a breach of the implied term of trust and confidence. In particular the Court referred to the fact that the nursing home had failed to resolve the most serious of the allegations against Mr Patel, it had not withdrawn any complaint it had made in respect of that matter to the DBS and explained that it had done so to Mr Patel and had failed to clarify the position, despite Mr Patel’s request for it to do so.

The Court of Appeal stated that a serious breach of contract by an employer in its handling of a contractual appeal may justify the employee in treating themselves as having been constructively dismissed and it was arguable that this was part of the case Mr Patel was seeking to advance. On that basis the Court invited the parties to make written submissions as to whether the appeal should be allowed on the basis that there was a potential constructive dismissal.

Conclusion

This case is useful confirmation that where an employee is successful in a contractual appeal process the original dismissal will vanish, irrespective of whether reinstatement is specifically stated as an outcome. This will mean that in such situations an employee will lose their right to claim unfair dismissal.

Interestingly, before the Court of Appeal Mr Patel argued that there may be reasons, other than getting their job back, why an employee might wish to appeal against dismissal. For example, the employee might simply wish to clear their name so as to improve their chances of getting other employment elsewhere or might appeal as a way of protecting their right to full compensation for unfair dismissal, since the award may be reduced by up to 25% where they have unreasonably failed to appeal. Whilst the Court appeared to accept these points, it stated that the fact that an employee might have other motives for seeking to appeal does not affect the interpretation of the contract that the effect of a successful appeal was to revoke the original dismissal.

However, it is worth institutions bearing in mind that, even if the appeal is successful, it is important that the process is fair and deals with all the reasons for dismissal (where there are more than one), as if an employee is unhappy with the outcome, despite the appeal being upheld, they may be able to refuse to be reinstated and bring a claim of constructive dismissal.

Finally, this decision concerned the interpretation of a contractual appeal process. Whilst the same logic may well apply to a non-contractual process there is no authority on that point, so employees may still be able to argue in such a case that a successful appeal does not automatically mean that their right to claim unfair dismissal vanishes.

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