Patel v Folkestone Nursing Home Ltd

A contractual disciplinary appeal against dismissal ordinarily has the effect that, if pursued to a successful conclusion, the employment relationship is treated as having continued throughout. The original dismissal is extinguished, with contractual pay and rights restored. The employee cannot accept or reject that consequence merely because the claim was issued before the appeal concluded. Express contractual terms may modify the ordinary effect, for example by permitting demotion. Separately, defective handling of an appeal may breach the implied duty of trust and confidence and entitle the employee to claim constructive dismissal. An appeal outcome should resolve material disciplinary allegations and explain the employee’s contractual position.

The appellant was summarily dismissed for alleged misconduct. His contractual appeal was allowed, but the employer’s letter dealt only with one allegation and left unresolved the more serious allegation concerning patient records and a related notification to the Disclosure and Barring Service. The appellant brought unfair-dismissal proceedings before the appeal outcome had been clarified.

The Employment Tribunal found that he had been dismissed and upheld his claim. The Employment Appeal Tribunal, in UKEAT/0348/15/DM, held that a successful contractual appeal retrospectively revived the employment relationship. The appellant’s related cross-appeal was dismissed as otiose in UKEAT/0006/16/DM. The central issues before the Court of Appeal were the effect of the successful appeal and whether the employer’s handling of it amounted to constructive dismissal.

1. Disposition. The court unanimously allowed the appellant’s appeal on the alternative constructive-dismissal analysis. Permission was granted in relation to the cross-appeal, which was also allowed and remitted to the Employment Appeal Tribunal. The respondent’s appeal to the Employment Appeal Tribunal was dismissed in full.
2. Effect of a successful contractual appeal. The objective meaning of an ordinary contractual right to appeal against disciplinary dismissal is that, if the appeal is pursued to a successful conclusion, both parties must treat the employment relationship as having continued throughout. The original dismissal is extinguished. The employee is entitled to back pay and the benefit of contractual rights during the interim period. This was consistent with the approach in Salmon v Castlebeck Care (Teesdale) Ltd [2015] ICR 735, and with the reasoning in Roberts v West Coast Trains Ltd [2004] EWCA Civ 900; West Midlands Cooperative Society v Tipton [1986] AC 536 was powerful persuasive support.
3. The rule is not displaced by collateral reasons for appealing or by the fact that proceedings were issued before the appeal was determined. An employee who keeps the appeal alive is bound by its successful outcome. The position may differ where the contract expressly permits a substituted sanction, such as demotion, as in Roberts.
4. Constructive dismissal. A successful appeal does not prevent a later constructive dismissal arising from the employer’s conduct in handling the appeal. Leaving a serious disciplinary allegation unresolved, failing to clarify the employee’s position, and failing to withdraw and explain a related regulatory notification could breach the implied duty to maintain trust and confidence. On a fair reading of the litigant-in-person’s ET1, that case had been advanced. The Employment Tribunal was entitled to find that the appellant had been constructively dismissed before presenting his claim.
5. The Tribunal’s 20% uplift under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 was left undisturbed. The cross-appeal concerning the monetary deductions was remitted for consideration of whether there were reasonable grounds for it to proceed.

1. Court of Appeal (Civil Division): The main judgment was given under [2018] EWCA Civ 1689. Following written submissions, the final determination in the addendum, [2018] EWCA Civ 1843, allowed the appeal on constructive-dismissal grounds and remitted the cross-appeal.
2. Employment Appeal Tribunal: In UKEAT/0348/15/DM, the respondent’s appeal was allowed on the effect of the successful contractual appeal. The related cross-appeal, UKEAT/0006/16/DM, was dismissed as otiose.
3. Employment Tribunal: The Tribunal found that the appellant had been dismissed, upheld the unfair-dismissal claim, and awarded compensation, subject to deductions and an uplift under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992.