Roberts v West Coast Trains Ltd

Where a contract provides for an internal disciplinary appeal and permits dismissal to be replaced by demotion, a successful appeal ordinarily revives or continues the original employment contract with retrospective effect. The appeal decision is neither an offer of re-engagement nor the creation of a new contract.

An unfair dismissal claim lodged after the initial dismissal but before the internal appeal decision does not freeze the parties’ legal position. If the employee pursues the appeal to a successful conclusion, the original dismissal is treated as displaced. The initial dismissal stands where no appeal is brought or an appeal is withdrawn before decision.

An employee was dismissed for misconduct under a contractual disciplinary procedure. He invoked the contractual right of appeal and lodged an unfair dismissal complaint before the appeal was determined. The appeal body substituted demotion and suspension without pay, both of which were sanctions authorised by the existing contract.

The Employment Tribunal held that the successful internal appeal meant that the employee had not been dismissed. The Employment Appeal Tribunal, in a judgment given by Elias J, dismissed his appeal. The employee appealed to the Court of Appeal, contending that jurisdiction was fixed when his complaint was lodged and that the appeal decision amounted only to an offer of re-engagement.

The central issue was whether the contractual appeal decision retrospectively displaced the initial dismissal and continued the original contract.

1. Appeal dismissed. The Employment Tribunal made no error of law in deciding that the appellant had not been dismissed for the purpose of his unfair dismissal complaint. The Employment Appeal Tribunal had correctly upheld that decision.
2. The disciplinary and appeal procedures formed part of the employment contract. They authorised a range of sanctions, including dismissal, suspension without pay and reduction in grade. The appeal body was therefore contractually entitled to replace the initial dismissal with demotion.
3. The appeal decision did not create a new contract or constitute an offer of re-engagement which the employee could accept or reject. It gave effect to a different sanction under the existing contract. Its effect was to revive or continue that contract retrospectively, so that the employee was treated as not having been dismissed.
4. The lodging of an unfair dismissal complaint while the initial dismissal remained effective did not freeze the jurisdictional position. The Employment Tribunal could consider the legal and factual position when the claim came to be heard. The intervening successful appeal was therefore legally relevant. The position would have differed if the employee had not appealed or had withdrawn his appeal before a decision, because the initial dismissal would then have stood.
5. The result accorded with the principles in J Sainsbury Ltd v Savage [1981] ICR 1 and West Midlands Co-operative Society Ltd v Tipton, cited in the judgment as both [1996] ICR 192 and [1986] ICR 192. A contractual appeal forms part of the overall disciplinary process. A successful appeal may produce reinstatement with retrospective effect, whereas an unsuccessful appeal leaves the original dismissal date effective.
6. Lady Justice Arden added that continuation of the original contract is the normal result of an internal appeal unless the contract expressly provides otherwise. The employee could instead have alleged constructive dismissal on learning that demotion had been substituted, but he had not done so.

The appellant was ordered to pay the respondent’s costs.

1. Court of Appeal (Civil Division): Dismissed the employee’s appeal and upheld the conclusion that the contractual appeal decision retrospectively displaced the dismissal.
2. Employment Appeal Tribunal: Elias J dismissed the employee’s appeal, holding that the appeal body imposed an authorised contractual sanction rather than terminating the existing contract and offering re-engagement.
3. Employment Tribunal: Unanimously determined as a preliminary issue that the employee was not dismissed and therefore could not pursue an unfair dismissal claim.