Successful appeal erases dismissal

Published on: 18/07/2018


In the recent case of Patel v Folkstone Nursing Home Ltd, the Court of Appeal held that an employee had not been dismissed by his employer as his internal appeal against dismissal had been successful; thereby effectively erasing the earlier dismissal. 

The claimant had been dismissed for gross misconduct for falsifying records and sleeping whilst on duty. On appeal, it was found that he had actually been sleeping during an unpaid break and, as such, the appeal was upheld and the decision to dismiss revoked.  The appeal process failed to deal with the other aspects of the disciplinary and the claimant, unhappy with the process and explanations given, refused to return to work.  He pursued claims for unfair and wrongful dismissal.  The Court of Appeal held that there had been no dismissal.  However, it did recognise that there were failings in the employer’s handling of the matter which could amount to a fundamental breach of contract and allowed the parties leave to make representations on a potential constructive dismissal claim.

This case specifically concerned a contractual disciplinary process, however, it is generally accepted that a dismissal vanishes on a successful appeal.  However, for employees who feel the process has been poorly managed, this judgment does suggest that it may be possible for them to claim constructive dismissal instead.   


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