This case involved a dismissal for gross misconduct. The employee appealed against the decision internally and won but refused to return to work as other serious allegations made against him were not addressed. The Court had to determine whether the employee was in fact dismissed or whether, owing to the success of the internal appeal, he remained in employment and the dismissal had no effect.

The appellant worked as a healthcare assistant for the respondent care home. He was dismissed for gross misconduct stemming from allegations that he was sleeping whilst on duty and falsifying patients’ records (this second charge brought the threat of a referral to the Disclosure and Barring Service). The appellant successfully appealed the decision via an internal appeals procedure. The decision to dismiss was revoked as the external manager concluded the appellant was on an unpaid break at the time and thus had not violated any company rule or procedure.

However, the appellant was dissatisfied with the outcome as the allegation that he had falsified records had not been dealt with. The appellant refused to return to work and subsequently brought claims for wrongful and unfair dismissal.

At tribunal the respondent argued there had been no valid or effective dismissal of the appellant. This line of argument was rejected. The Tribunal held the employee had been dismissed, contending it had jurisdiction to hear the employee's claims of wrongful and unfair dismissal.

On appeal, the EAT applied Salmon v Castlebeck Care (Teesdale) Ltd [2015] ICR 735 concluding that, by virtue of the contract provision and the appellant's successful internal appeal, the appellant could not be regarded as having been dismissed by the respondent.

On appeal, the Court of Appeal ruled the EAT had been correct to follow and apply Salmon:

“It is clearly implicit in a term in an employment contract conferring a contractual right to appeal against disciplinary action taking the form of dismissal that, if an appeal is lodged, pursued to its conclusion and is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout.

…If an appeal is brought pursuant to such a term and is successful, the employer is contractually bound to treat the previous dismissal as having no effect and the employee is bound in the same way. That is inherent in the very concept of an appeal in respect of a disciplinary dismissal.”

The Court considered the unsatisfactory manner in which the respondent dealt with the internal appeal. It held the respondent may well have breached the implied duty of trust and confidence by failing to address the more serious allegations made against the appellant and the DBS referral, which may have entitled him to claim constructive dismissal. The Court invited the parties to make written submissions on these points.
http://www.bailii.org/ew/cases/EWCA/Civ/2018/1689.html

NOTE: Readers interested in this point about what was actually pleaded by the claimant may also wish to consider the decision of the NI court of Appeal in the case of Knox (Lindsay) v Henderson Retail Ltd [2017] NICA 17, that also referred to the case of Parekh v The London Borough of Brent [2012] EWCA Civ 1630, in which the Court reminded tribunals of their overriding responsibility to ensure fairness over procedure:

“… As the Employment Tribunal that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence …”