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Worth Appealing

Employers should be aware that where an employee is dismissed and appeals against that dismissal, the effect of a successful internal appeal is the employee is immediately re-instated on the same terms and conditions. Further, at law the employee is treated as if they had never been dismissed and therefore they are entitled to be paid for any earnings which they would have received between the date of the dismissal and the date of the outcome of the successful appeal and, crucially, any right they may have had to bring a claim for unfair dismissal is extinguished. This is useful to remember where an obvious error has been made by a dismissing officer.

One caveat to that general rule was flagged up recently in the case of Patel v Folkestone Nursing Home Limited [2018] IRLR 924, CA which held that, “if there is some feature of the employer’s handling of the appeal which constitutes a breach of…the duty to maintain trust and confidence” then that may justify the employee in treating himself as constructively dismissed.

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