Piper v Maidstone & Tunbridge Wells NHS Trust

Where a contractual disciplinary procedure makes an alternative sanction conditional on the employee’s agreement, the employee may reject that sanction. Rejection prevents the employer from unilaterally replacing a dismissal with re-engagement on inferior terms. If the alternative sanction is proposed on an internal appeal, the original dismissal then remains effective.

The usual effect of a successful contractual appeal depends on the terms of the particular procedure. An appeal may revive the contract where the procedure permits the employer to impose the substituted sanction without the employee’s consent. It does not do so where agreement is an express contractual condition.

The claimant, a lead chaplain, was dismissed for gross misconduct. On his internal appeal, the Trust purported to substitute a final warning, demotion, reduced pay and transfer for dismissal.

The contractual disciplinary policy allowed action short of dismissal but stated that, if the employee did not agree with that course, dismissal was the only alternative. The claimant rejected the proposed outcome and brought an unfair-dismissal claim.

The Ashford Employment Tribunal held that the appeal had overturned the dismissal and that it therefore lacked jurisdiction. The claimant appealed. The central issue was whether the appeal outcome had revived the contract despite the claimant’s refusal to accept the alternative sanction.

1. Appeal allowed. The Employment Tribunal erred in construing the contractual disciplinary policy as permitting the Trust unilaterally to substitute demotion, lower pay and transfer for dismissal on appeal.
2. The words providing that dismissal was the only alternative if the employee did not agree with action short of dismissal gave the employee an option. If the employee agreed, employment continued and the original dismissal was expunged. If the employee disagreed, dismissal followed at the disciplinary stage or, where the issue arose on appeal, the original dismissal stood.
3. The claimant had plainly rejected the proposed sanction. His ET1 sought restoration to his former role, and his subsequent email described the proposal as unreasonable re-engagement which he could not accept. The proposed outcome was re-engagement on different terms, not reinstatement in the full sense of section 114 of the Employment Rights Act 1996.
4. The effect of an internal appeal depends on the contractual procedure. Roberts v West Coast Trains Ltd concerned a procedure under which the employer could impose an alternative sanction without the employee’s consent. It was therefore materially different. The contractual requirement for agreement made this case substantially similar to Saminaden v Barnet Enfield & Haringey NHS Trust.
5. The Tribunal’s conclusion that the dismissal had been overturned was inconsistent with the proper construction of the policy. A declaration was substituted that the claimant had been dismissed on 20 July 2011 and that his employment was never revived. The unfair-dismissal complaint was remitted to a differently constituted Tribunal for determination on its merits.

• Employment Appeal Tribunal: appeal allowed; the preliminary jurisdiction decision was reversed and the unfair-dismissal claim remitted.
• Ashford Employment Tribunal: judgment promulgated on 29 March 2012 held that the internal appeal had overturned the dismissal and that it had no jurisdiction to determine unfair dismissal.