Mr Patel, who worked as a healthcare assistant, was dismissed for gross misconduct in April 2014 for sleeping on duty and falsifying residents’ records, the latter of which he was told would result in him being reported to the care home regulator for putting residents at risk.
Patel successfully appealed his dismissal and received a letter in June 2014 confirming his dismissal had been overturned. The letter acknowledged that he had in fact only slept during his designated rest breaks and therefore had not breached any rules.
However, the letter made no reference to the alleged falsification of records or the supposed referral to the care homes regulator. Patel asked for further clarification on this but when this was not forthcoming he chose not to return to work and instead brought forward a claim for unfair dismissal.
The initial employment tribunal were tasked with determining whether Patel had actually been dismissed so as to allow him to bring forward a claim for unfair dismissal.
The ET held that the decision of the employer to accept Patel’s appeal did not automatically undo the effect of his dismissal and there was no provision within his contract which stated a dismissal would be wiped out immediately following a successful appeal.
The ET also stated the appeal outcome letter issued to Patel in June 2014 was unclear as it failed to address the ‘critical allegation’ of falsifying patient records that was made against him. They held that that this represented a significant lack of clarity around the true outcome of the appeal, meaning that Patel was entitled to consider himself as dismissed.
The employer decided to appeal this decision to the Employment Appeal Tribunal (EAT), who were asked to decide whether Mr Patel had been dismissed, or whether this original dismissal had ‘vanished’ as a result of the appeal decision.
The EAT overturned the decision and held that the letter outlining the outcome of Patel’s appeal was sufficiently clear to revoke the original dismissal, despite not referring to the allegation of falsifying patient’s records.
Importantly the EAT referred to Salmon v Castlebeck Care (Teesdale) Ltd, which stated that regardless of whether there is an express provision in the employment contract, the decision to lodge an appeal to a dismissal is made on the understanding that employment will automatically be ‘revived’ once this appeal is successful.
Court of Appeal
The Court of Appeal found that the EAT were entitled to find that Patel was unable to claim unfair dismissal as his original dismissal was considered to have ‘vanished’ following the outcome of the appeal.
The Court added that unless it is specifically stated otherwise in the contract of employment “the implicit nature of a successful appeal” revives the employment relationship and extinguishes the original dismissal decision.
This case highlights that when an appeal is successful an employee’s dismissal is considered to have ‘vanished’, meaning continuity of employment is preserved and wages back pay should be issued.