The claimant had been employed by the respondent as ‘Creativity and Innovation’ lead. She was dismissed on 6 March 2014 following an investigation and disciplinary process. The claimant appealed, in accordance with the employment contract, to an Independent Appeal Committee (IAC) which allowed the appeal and ordered her reinstatement to her substantive role.

Despite the legally binding direction from the Appeal Committee, the respondent offered the claimant a return to work focusing on an ‘Employability Project’ which in reality was not a return to work on the same terms. The claimant made it clear that she did not accept the new position as a reinstatement but the respondent contended that the proposed duties were in line with her original role.

The claimant then resigned on 18 March 2015, arguing constructive dismissal.  The tribunal found that there had been several breaches of express contractual terms in relation to the disciplinary procedures and found that the claimant was both constructively and unfairly dismissed. The claimant was subsequently awarded £55,000 in compensation.

Practical Lessons

The tribunal was unequivocal that the respondent had not made a genuine attempt to reinstate the claimant to her original role, and were basically attempting to dress up a new position with the old label. However another interesting point emerges from this case. Based on the facts, it appears that the inbuilt appeal mechanism to the IAC was indeed binding on the respondent who, clearly, didn’t quite realise that they were bound to accept it as demonstrated by their apparently nonchalant attitude.

But the situation whereby an employer (usually with fewer resources) outsources the appeal procedure to an independent panel is not entirely the same. In the case of Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery) EAT/0311/13 such a panel overturned the original decision to dismiss, but the employer decided not to implement their decision. It was held that ultimately, that the overall fairness of a dismissal depends on whether or not the employer acted ‘reasonably in all circumstances’ in dismissing the employee. To say that an employer cannot deviate from such a panel’s decision was “to put a gloss onto the statutory language” of s.98 of the ERA 1996 (Art.130 ER(NI)O 1996).

https://employmenttribunalsni.co.uk/OITFET_IWS/OnlineDecisionDocument2.aspx