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Case law: Successful appeal means employee treated as having never been dismissed – but beware inadvertent constructive dismissal

Employers should treat an employee who successfully appeals a dismissal under its contractual disciplinary procedures as having always remained in employment. However, they should take care not to do (or fail to do) anything during the appeal that could be treated as grounds for the employee to resign and claim constructive dismissal.

September 2018

This update was published in Legal Alert - September 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee was dismissed for gross misconduct in April but appealed under his employer's contractual disciplinary procedures. He received a letter in June saying his appeal had been successful, but he was not satisfied with what the letter said. He claimed it left important issues relating to the alleged gross misconduct up in the air – particularly, it failed to deal with the most serious allegation against him. He refused to return to work and claimed unfair dismissal.

The Court of Appeal ruled that the effect of a successful appeal against a dismissal under contractual disciplinary procedures is that an employee is treated as if they had never been dismissed (so, for example, the employee should be paid arrears of pay and reinstated in their old job), even if the employee's contract and/or disciplinary policy does not expressly say that. Therefore, the employee could not claim for unfair dismissal.

However, the Court said the fact that the employer had not resolved important issues during the appeal meant there had been a constructive dismissal. There is a constructive dismissal when an employer has done something that is so fundamentally inconsistent with the employer/employee relationship – a 'repudiatory breach' - that the employee is entitled to resign and treat him or herself as dismissed.

It is likely that the outcome would have been the same had the disciplinary procedure been non-contractual.

Operative date

  • Now


  • Employers should note that an employee's successful internal appeal against dismissal under contractual disciplinary procedures means the employee is treated as having remained in employment, but the employer should take care not to do (or fail to do) anything in the course of the appeal that could be treated as grounds for the employee to resign and claim constructive dismissal

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

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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