Does a successful appeal against dismissal under a contractual right of appeal 'revive' a contract, re-instating the employee, even if the contract doesn't provide for that?
Yes, held the Court of Appeal in Patel v Folkestone Nursing Home Ltd.
The Claimant was a care assistant, dismissed over two charges of misconduct. He appealed under a contractual procedure, and was told by letter that his appeal had been successful, but without being told if one allegation had been overturned. The Claimant refused to return to work and claimed unfair dismissal. At the tribunal, the Respondent argued that the successful appeal had re-instated the Claimant, so he hadn't been dismissed. The tribunal rejected this argument, holding it should not be implied into the contract, which was silent about it, that a successful appeal resulted in re-instatement.
The Court of Appeal overturned the tribunal's judgment, holding that in the context of an ordinary employment contract and absent some express qualification, the effect of a contractual right of appeal against dismissal is that a successful appeal revives the contract and 'extinguishes' the original dismissal.
However, that was not the end of this case. The Court invited the parties' submissions on whether the appeal outcome letter was a breach of the implied term of trust and confidence, and if on the Claimant's case, as pleaded, his case might be that he was constructively dismissed by the 'unsatisfactory' appeal outcome.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.