• Robert Spicer

Unfair dismissal: internal appeal procedure

UNFAIR DISMISSAL

Internal appeal procedure Case Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1843

Facts P was dismissed by F in April 2014 following a disciplinary process which alleged that he had been asleep on duty and had falsified residents’ records, in relation to which F was notifying the Disclosure and Barring Service (DBS)). In June 2014 P successfully appealed against the dismissal decision However the letter allowing the appeal only dealt with the issue of sleeping on duty, and did not mention the falsification of records, which was a more pressing issue to P. P did not return to work following the successful appeal because he was not happy with the failure to respond over the falsification allegations and the DBS notification.

He brought claims of unfair dismissal and wrongful dismissal. The ET found that P was dismissed by the time of the claim in July 2014 because of the lack of clarity in F’s letter allowing the appeal. It decided that P had been unfairly dismissed. F appealed to the Court of Appeal.

The EAT allowed the appeal on the basis that the successful appeal had impliedly revived the contract of employment. P appealed to the Court of Appeal.

Decision 1. The appeal was dismissed.

  1. There was no express dismissal that allowed P to claim unfair dismissal. The letter of June 2014 might have been a breach of the implied duty of trust and confidence, and arguably P could have been justified in treating himself as dismissed. This argument was not raised in the current appeal, and P and F were invited to make written submissions on these grounds.

  2. In an addendum to the decision, published after written submissions, the court determined that the ET1 should have been read to include a complaint of constructive dismissal because of the unsatisfactory way in which the internal appeal had been conducted. In not dealing with the issues properly, F had acted in breach of the implied duty and therefore P was entitled not to return to work and to treat himself as constructively dismissed. The appeal in this respect was allowed and the case was remitted to the EAT.

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