Where a contractual disciplinary appeal is successful, there is no dismissal (Court of Appeal)

Ben Spence

It was originally decided by the Employment Appeals Tribunal (EAT) that there was no dismissal where an employee was successful in his appeal addressing only one of two disciplinary allegations against him. The employee had a right to appeal under a contractual disciplinary procedure and after his successful appeal the decision to dismiss was revoked.

In Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689 the Court of appeal has now also agreed with the decision of the EAT. As part of the leading judgement, Sales LJ stated “I consider that …it is clearly implicit in a term in an employment contract conferring a contractual right to appeal against disciplinary action taking the form of 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 throughout”.

Sales LJ also went on to add “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 made against him 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. Those terms include the usual implied duty of an employer to maintain trust and confidence”.

For further reading of this case please click on the link below.

Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689

Ben Spence – HR Business Partner

Ben Spence

I am a confident and commercial MCIPD qualified HR Professional with over 15 years’ experience in Human Resources. Prior to joining Cook Lawyers I spent 3 years at Wigan and Leigh College as a HR Business Partner and 4 years providing a HR Service to Schools in Lancashire and Wigan through the local authority. I have a real passion to ensure employment issues are managed effectively and in a timely manner.