Folkestone Nursing Home Ltd v Patel

A contractual disciplinary appeal ordinarily carries an implied power to reverse a dismissal. Unless the contract provides otherwise, a successful appeal against dismissal revives the employment contract. It is unnecessary for the procedure expressly to provide for reinstatement, or for the successful appeal decision to be communicated, for that effect to arise.

An Employment Judge may decline to act on a concession which appears wrong or arguably wrong, especially where it concerns an essential element of the claim. The Judge may list that issue for decision.

The claimant, a healthcare assistant, was dismissed for alleged gross misconduct. On his contractual appeal, the employer wrote that the original dismissal decision was revoked and invited him to return to work. The claimant did not return. He brought claims for unfair and wrongful dismissal.

The Employment Tribunal held that the appeal had not revoked the dismissal. It considered that the procedure did not specify the consequences of a successful appeal and that the appeal outcome letter left one allegation unresolved. It also made findings on an uplift under Trade Union and Labour Relations (Consolidation) Act 1992, contributory conduct and mitigation.

The employer appealed the finding that there was a dismissal. The central issue was whether the successful contractual appeal had revived the claimant's contract, so that there was no live dismissal when he presented his claim.

1. Appeal allowed. The claimant was not dismissed. The employer's appeal against the Tribunal's jurisdictional finding succeeded, and the Tribunal's compensation findings consequently fell away.

2. An Employment Judge was entitled to determine whether a dismissal existed despite the employer's earlier concession. A Judge need not give effect to a concession which appears wrong or arguably wrong, particularly where it concerns an essential element of the claim. Rule 21 of the Employment Tribunal Rules of Procedure 2013 also left it open to the Judge to fix a hearing to determine the issue. The point had in any event been identified and ordered for determination at an unappealed preliminary hearing.

3. The Tribunal erred in holding that the appeal could not revoke the dismissal because the contractual procedure did not expressly state what followed a successful appeal. Applying Salmon, it is inherent in a contractual appeal procedure, unless the contract says otherwise, that the appeal may reverse or vary the earlier decision. Where dismissal is reversed, the contract revives, although a lesser sanction may be imposed. This conclusion gives effect to what the contractual instrument, read in its context, would reasonably be understood to mean.

4. The appeal outcome letter was sufficiently clear. It expressly revoked the dismissal and invited the claimant to return to work. The claimant was entitled to resume work and receive back pay. Further, communication was not a condition of revival once the contractual decision to allow the appeal had been made.

5. The issue concerning the section 207A uplift did not arise. The Judge nevertheless observed that, if the employer alleged delegation of dismissal authority by its proprietor, it had to adduce evidence of that delegation.

6. On the employer's application under Rule 34A(2)A, no order was made for appeal fees. Although the employer succeeded, its own handling of the proceedings, including its failure to draw Salmon to the Tribunal's attention, and the claimant's circumstances justified the exceptional exercise of discretion.

• Employment Appeal Tribunal: appeal allowed. The Employment Tribunal's conclusion that the claimant remained dismissed after the successful appeal was displaced.
• Employment Tribunal, East London Hearing Centre: judgment dated 29 June 2015. It held that the claimant had been dismissed and determined associated compensation issues.