In Folkestone Nursing Home Ltd v Patel, Mr Patel (P) was dismissed for gross misconduct, i.e. falsifying residents’ records and sleeping on duty. P appealed. The appeal was heard by Mr Shah (S). P said he was sleeping during his rest break and that he had been unable to complete the daily record sheets because of an interruption. S wrote to P stating that the decision to dismiss had been revoked because P was on an unpaid break when he was asleep, which was not working time and therefore there had been no breach of company rules. The letter also indicated that P would be contacted so arrangements could be made for him to return to work.

P, however, did not return to work.  He said that the letter was incomplete since it did not deal with the allegation that he had falsified records.  He said he was dissatisfied with the reasoning given in the letter and was owed a full explanation.  He brought a claim for unfair dismissal.

The ET addressed the issue of whether there had in fact been a dismissal because the decision to dismiss had been revoked. The ET decided there had been a dismissal on the basis that: (i) the appeal procedure sets out the right of appeal, but does not cover what happens if an appeal succeeds, and the letter itself had not been clear; and (ii) the letter amounted to an offer to P to return to work on an unspecified basis and left the significant issue of the second allegation undealt with.

The employer appealed. FNH Ltd said that while the ET had been referred to case law it had not been made aware, in particular, of the EAT’s ruling in Salmon v Castlebeck Care (Teesdale) Ltd, which provides the authority for contending that the ET’s reasons for holding that the appeal did not revive the contract were incorrect.

The Salmon judgment showed that there was no requirement for the appeals procedure expressly to give the right to reinstate or impose any particular sanction. It was implicit that the appeal could overturn the dismissal and revive the contract. In addition, the decision did not need to be communicated at all for it to have the effect of reviving the contract. In any event, FNH Ltd asserted that the decision was communicated in P’s case and the words were clear enough to make it plain that the dismissal decision had been revoked.

The EAT agreed. The letter advising P of the outcome of the appeal clearly stated that the decision to dismiss had been revoked. Therefore, P’s contract of employment was revived, he was entitled to start work again and he was entitled to back pay.  In such circumstances, no further communication was necessary. It therefore followed that P had not been dismissed.

The Acas Disciplinary Code is silent on the issue of whether to set out the range of possible appeal outcomes in an appeals procedure. However, page 34 of the Acas Guide states that an appeals procedure “should spell out what action may be taken by those hearing the appeal”. To avoid any confusion over the status of appeal decisions, employers may wish to review their procedure to ensure Acas guidance is being followed, taking legal advice on the content of any existing, or proposed new, wording.

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