Fighting financial crime post Brexit: what next?
Mr Patel was an assistant working for Folkestone Nursing Home. His contract of employment incorporated an employee handbook which contained a contractual right to lodge an appeal in the case of any disciplinary action taken against him.
Patel was charged with two disciplinary offences which were said to amount to gross misconduct. Firstly, that he fell asleep while on duty and, secondly, that he had falsified records of certain residents by pre-recording that they had slept through the night. A disciplinary hearing was held and the charges were found to be proven and to constitute gross misconduct. He was duly dismissed without notice.
He appealed to his employer and brought proceedings in the employment tribunal. He was then informed that his appeal had been upheld. However, the letter in which he was informed of that fact had serious omissions. It dealt with the first charge, but it made no reference to the much more serious second charge. Dissatisfied with this response, Patel did not return to work, taking the view he was not obliged to do so and could treat himself as having been dismissed.
On appeal, the EAT held that it was implicit in a contractual right to appeal against dismissal that a successful appeal would overturn the dismissal and revive the employment contract. The Court Appeal agreed and held, in the absence of any express provision to the contrary, that this was the natural interpretation of a contractual right of appeal and the employment contract would be revived as if no dismissal had taken place.
The effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout – all terms are re-instated retrospectively and preserved prospectively. It is not the case that a successful appeal gives the employee a choice as to whether to return to work or not and, if he does not repeal an appeal before its conclusion, then he runs the risk of any claim founded on his previous dismissal being unsuccessful. This is on the basis that the dismissal itself is nullified as a matter of law. Patel’s claims insofar as they were founded on that original ‘dismissal’ therefore had no legal basis on which to proceed.
The Court of Appeal considered a second line of argument which may have formed a basis for the appeal to be allowed, although no definitive answer was given. The court felt that the inadequacies of the employer’s letter, which conspicuously failed to address the serious, second charge, may have constituted a breach of the implied term of trust and confidence so as to enable Patel to treat himself as having been constructively dismissed (although the first ‘dismissal’ would still be nullified).
What about non-contractual rights of appeal of the kind which more usually appear in employee handbooks? The position is probably the same. The court said that the ordinary meaning of the relevant words of the right of appeal, read objectively, renders the result outlined above. On the basis on the court’s reasoning, it seems that the same conclusion is likely to result in the case of a non-contractual right, but of course that isn’t definitive until the courts have considered the issue explicitly.
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