Appealing against an unfair dismissal

10 September 2018

Most employees appeal against their dismissal if they think the penalty is harsh or unfair. But what happens if that appeal is successful. Does the dismissal vanish?

Mr Patel was a healthcare assistant for Folkestone Nursing Home. Mr Patel was accused of two different acts of misconduct and was dismissed for gross misconduct. He appealed. The appeal officer agreed that Mr Patel should not have been dismissed. However, the letter communicating the appeal outcome dealt with only one of the allegations of misconduct, to say that allegation had been wrongly decided by the dismissing officer. The letter also said that they would arrange Mr Patel's return to work.

Mr Patel was unhappy that the appeal letter did not deal with the second misconduct allegation. He did not return to work and brought an unfair dismissal claim instead. The employment tribunal found that Mr Patel had been dismissed. The employment judge said that the employer's disciplinary procedure did not set out the consequences of a successful appeal against dismissal. They also said that the letter overturning the dismissal was unclear and left out significant issues (including the second allegation of misconduct).

The Employment Appeal Tribunal disagreed. There was no need for a contractual disciplinary procedure to specify the outcome of an appeal against dismissal. Unless the contract said something different, it was obvious that a successful appeal would mean that the contract is revived. The dismissal effectively vanishes. The communication of this decision was not relevant to whether the revival had taken place. However, in this case the letter was clear that the dismissal had been revoked.

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