Summary  

The Claimant was employed by the Respondent as a healthcare worker, commencing employment on 22 October 2018.  

Following a disciplinary hearing on 13th September 2019, the Claimant was informed that she was to be dismissed with effect from 22nd September 2019 because she failed to "adhere to policy and procedures relating to notifying the home of absence”.   

The Claimant was informed of her right of appeal. By letter dated 21 September 2019, the Claimant notified the Respondent’s regional manager of her desire to appeal the dismissal. The Claimant was afforded an appeal hearing and her dismissal was ultimately overturned. She was accordingly given the opportunity to have her job back. However, on 5th December 2019, the Claimant contacted the Respondent to inform them that, "she had received her appeal letter but does not want to return to work with Four Seasons as she now has a new job”.  

The Claimant pursued a claim for unfair dismissal.  

The Respondent’s representative argued that there could be no dismissal as the impact of a successful appeal effectively made the dismissal itself disappear. The Tribunal accepted this submission and commented as follows:  

“Firstly, the contention advanced was that legal authority supported the proposition that once a dismissal had been overturned upon an appeal under a disciplinary process, the contract of employment was automatically reinstated. Accordingly, if a dismissed employee who was so reinstated on appeal, then, of their own volition, decided not to return to the employment, there was no dismissal by the employer. The cited authority for this proposition was derived from the case of Ramesh Patel v Folkstone Nursing Home Limited [2018] EWCA Civ 1689 and [2018] EWCA Civ 1843. That English Court of Appeal case makes reference to the Northern Ireland Court of Appeal case (which is binding upon this tribunal) of David McMaster v Antrim Borough Council [2010] NICA 45. In effect, the Respondent did not terminate the contract which subsisted up to the date of the successful appeal. The Claimant’s conduct after that date effected the termination of the contract and accordingly there was no dismissal. For this reason, there could be no successful unfair dismissal claim.” 

The Tribunal also pointed out that:  

“The corollary of this position, as conceded by the Respondent’s representative, was that no argument could be effectively advanced that the Claimant had failed to attain the necessary period of one year, provided for in Article 140 of the 1996 Order.”  

As a result, the Respondent was obliged to pay the Claimant the equivalent of two months’ pay (representing payment for the time between the date of dismissal and offer of reinstatement).  

Practical Lessons  

This case demonstrates that a successful appeal against a dismissal will automatically reinstate a contract of employment. This means that if an employee gets their dismissal overturned on appeal and refuses to return to their role, they cannot subsequently bring a claim for unfair dismissal as the dismissal effectively vanishes. 

NI Tribunal decisions are available on the OITFET website: http://www.employmenttribunalsni.co.uk/ 

For an alternative view on this case, from Jason Elliott BL, please click HERE.