In Piper v Maidstone & Tunbridge NHS Trust, Piper was dismissed for gross misconduct. He appealed. The Trust's disciplinary procedure (which formed part of Piper's contract) provided that transfer to an alternative post might be substituted for dismissal but that: “If the employee does not agree with this course of action, dismissal is the only alternative.” The appeal was upheld, but Piper rejected the substitution of an alternative job. An ET agreed with the Trust that by upholding the appeal, and substituting an alternative sanction, the dismissal had been removed and there was no jurisdiction to hear an unfair dismissal claim. The EAT allowed Piper’s appeal. The effect of the contractual provision meant that if Piper agreed with the alternative sanction his employment would continue and the original dismissal would be erased. However, if he disagreed with it – which he had done – his original dismissal would stand. The tribunal therefore had jurisdiction to hear his unfair dismissal claim.
Comment: An employer may operate a contractual disciplinary procedure which provides that dismissal may be substituted with alternative sanctions. In principle, the effect is that the dismissal vanishes and the employee's employment continues, but employers must ensure they observe the contractual terms; otherwise, as this case demonstrates, the original dismissal is likely to stand.
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