If an employee is dismissed but that decision is subsequently overturned following an internal appeal, does the latter decision wipe out the effect of the former? The Court of Appeal tackled that issue in a guideline decision (Patel v Folkestone Nursing Home Ltd.).

The case concerned a care home worker who was summarily dismissed for gross misconduct after being accused of sleeping whilst on duty and falsifying patient records. His appeal against the dismissal was upheld and he was sent a letter informing him of that result. He was, however, dissatisfied with the terms of the decision letter and declined to return to work.

After he launched proceedings, an Employment Tribunal (ET) found that he could properly be viewed as having been dismissed. The decision letter had failed to address an issue of critical importance to him, in that it had not addressed the records falsification charge. The letter did not undo the effect of the previous dismissal and the man was entitled to proceed with his claim. The ET thereafter determined his complaint on its merits and found that he had been unfairly dismissed.

In upholding the employer’s appeal against that ruling, however, the Employment Appeal Tribunal (EAT) found that, given the man’s successful appeal, it had been his own choice not to return to work. He could not therefore be treated as having been dismissed and his claim fell at the first hurdle.

In ruling on the man’s challenge to that decision, the Court noted that the right to make an internal appeal was contained within his employment contract. On an objective reading of the contract, the EAT had correctly found that both employee and employer were bound to treat the employment relationship as having subsisted throughout the disciplinary process. The man had therefore not been dismissed in the ordinary sense.

Before reaching a final conclusion on the appeal, however, the Court would hear further argument as to whether the unclear and unsatisfactory terms of the decision letter gave rise to an arguable constructive dismissal claim.