On appeal against dismissal, it is open to an employer to substitute an alternative sanction such as a final written warning, for example.
In the case of Folkestone Nursing Home Ltd v Patel UKEAT/0348/15, the Employment Appeal Tribunal considered whether an Employment Tribunal had erred in holding that an employee had been dismissed.
The allegations against Mr Patel were that he was sleeping on duty and falsifying residents’ records. He was dismissed for gross misconduct. On appeal, it was confirmed that the original decision to dismiss was revoked. Mr Patel did not return to work on the basis that the appeal outcome only dealt with the sleeping on duty allegation; it failed to deal with the allegation that he falsified records. He claimed unfair dismissal.
Folkestone appealed against the Employment Tribunal’s decision that Mr Patel had been dismissed and sought to rely on the case of Salmon v (1) Castlebeck Care (Teesdale) Ltd (In Administration) (2) Danshell Helathcare Ltd and others UKEAT/0304/14. In that case, it was held that the decision to dismiss Mrs Salmon was wrong but no positive steps were taken to facilitate her return to work. Nevertheless, it was held that there had been no need for the outcome of the appeal to have been communicated to Mrs Salmon for it to be effective.
On the basis of the Salmon case, the EAT allowed the appeal and held that Mr Patel had not been dismissed.
The EAT also went on to consider whether Mr Patel should be required to pay fees incurred by Folkestone in bringing this appeal (which would be the usual course of events where an appeal is allowed). However, the EAT held that this was one of those rare cases in which no order for payment of fees should be made due to the conduct of Folkestone’s representative, Peninsula Business Services, during the proceedings including their failure to bring the case of Salmon to the Employment Tribunal’s attention. This was despite that fact that Peninsula had also acted in the case of Salmon.
This case goes to highlight some important principles about internal appeals as well as the importance of instructing the right representation in Employment Tribunal matters.
12th August 2016