When dealing with dismissals for misconduct, an essential element of a fair procedure is to offer the dismissed employee a right of appeal against the decision to dismiss.
We regularly advise employers in relation to misconduct dismissals and advise them how they may avoid potential claims of unfair dismissal. Offering the right of appeal may well be a great start to ensuring the process is fair but all too often employers simply pay lip service to an appeal, treating it is a tick box exercise necessary to usher out an errant employee.
However, the appeal can be a useful tool to protect an employer from a claim for unfair dismissal. A prudent employment lawyer would advise their employer client that any dismissal comes with a risk of a claim – even with the best reasons and the fairest of processes, there is a risk of a claim being pursued by the aggrieved employee. So, what happens if it transpires that there is an issue with the decision to dismiss?
The appeal offers something of a safety net and allows an employer some breathing space to review the dismissal and, if necessary, undo that decision. All too often employers appear to be afraid of upholding an appeal for fear of an admission of fault. Where there genuinely has been a problem with the dismissal (as highlighted by the employee’s appeal) then granting the appeal provides an opportunity to “un-do” the dismissal and avoid a potential claim for unfair dismissal.
The immediate impact of this erasure is that the employee is not able to pursue a claim for unfair dismissal – a point confirmed in a recent decision of the Court of Appeal in the case of Patel –v- Folkestone Nursing Home Ltd. The Employment Tribunal initially found that Mr Patel had been dismissed and so was entitled to pursue a claim for unfair dismissal. However, on appeal to the Employment Appeal Tribunal, the earlier decision was reversed on the basis that the employer had upheld Mr Patel’s appeal against his dismissal and, as such, there was no dismissal. Accordingly, Mr Patel was unable to pursue a claim for unfair dismissal as in effect there wasn't a dismissal to claim against. This analysis was subsequently confirmed by the decision of the Court of Appeal.
Whilst the decision in Patel does not provide any new principle of law, it does highlight the often overlooked advantages of upholding an appeal rather than hanging on to a decision which may prove questionable and lead to damaging litigation.
If you're interested in any of the topics raised in this article, or for further information, pelase contact Maz Dannourah. Alternatively, you can call to speak to one of the team on 0115 9888 777.