By Anthony Wilcox
We regularly find ourselves advising both individuals and employers about appeals against dismissal. The implications of appealing are not widely known, but can have significant consequences. A string of cases in recent years have considered the effect and established some important principles.
It makes a lot of sense for employees to appeal against decisions to dismiss them, after all, it promises at least the possibility that the employer will reconsider and reverse the dismissal. Appeals are also encouraged since, in some circumstances, awards for successful claims of unfair dismissal can be subject to reductions of up to 25% if a right of appeal has not been pursued. Inevitably some individuals only appeal against their dismissal to maximise the money they might recover if they successfully pursue a claim of unfair dismissal - they may have no genuine desire or intention to return to their job.
However, matters are not quite so simple. The Court of Appeal decision in Roberts v West Coast Trains Ltd is the leading case. This, and other subsequent cases, have developed a clear principle that when an employer decides an internal appeal against dismissal in favour of an employee, this revokes the dismissal. The effect is to erase the dismissal and the employment relationship is treated as if it had existed throughout. This applies even if the employee does not in truth wish to continue in employment.
Although the cases have involved contractual appeals, it is likely that in fact the contractual status of the appeal process makes little difference. The case of Salmon v Castlebeck Care (Teesside) Ltd again concerned a contractual right of appeal, but the Employment Appeal Tribunal commented that it is implicit in any internal appeal that success will negate the dismissal regardless of whether the appeal is governed by a contract.
The implications of erasing the dismissal are significant. The employee can no longer claim unfair dismissal - there is no longer a dismissal. However, the employee may respond by resigning to pursue a claim of constructive unfair dismissal based upon the employer’s conduct, since the history of what has taken place is not erased. If so, the employee will be responsible for establishing that there has been a fundamental breach of contract that justifies resigning and treating themselves as constructively dismissed - and that dismissal will then also have to be accepted as unfair by an Employment Tribunal, if the employee’s claim is to succeed.
There are further interesting aspects to the case of Salmon v Castlebeck Care (Teesside) Ltd. It was decided that upholding an appeal has the effect of erasing the dismissal without the need for an express direction to reinstate. Just as significantly, this becomes effective as soon as the appeal is decided, which can mean that the dismissal is erased before the employee is even made aware.
Employees and employers alike therefore need to consider very carefully how to handle appeals against dismissal. If you are thinking of submitting an appeal against a dismissal, or if you are an employer potentially dealing with an appeal, our Employment Law team have the knowledge and experience to advise you and will be very pleased to assist.
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