In its latest decision about internal appeals, the Court of Appeal has raised the possibility that handling the appeal process badly may be a breach of contract, even if the final outcome is in favour of the employee.
It has long been established, at least where the appeal process is contractual, that a successful appeal against dismissal will revive the contract of employment. Among other things, that means that if the employee has lodged an unfair dismissal claim while the appeal is pending, the claim will fall away if the appeal is upheld, since the dismissal will in effect vanish. But what happens if the employee does not what to accept reinstatement?
In this case the employee was a care assistant in a nursing home. He was dismissed as a result of two disciplinary charges. The first was that he was asleep while on duty. The second, more serious charge, was that he had falsified care records. The appeal decision which rescinded the dismissal accepted that the first charge was not made out, but said nothing about the second, more serious allegation. In addition it failed to confirm that the notification to the Disclosure and Barring Service had been withdrawn.
The Court of Appeal said that in these circumstances, it was arguable that the employer had been in breach of the implied duty of trust and confidence in the way it handled the appeal. That would have entitled the employee to treat the contract of employment as at an end, despite the fact that the appeal had been upheld. For technical reasons we don’t actually have a ruling from the Court of Appeal on this issue, but the view it has expressed will be persuasive in future cases.
This case is a reminder to employers that appeals are not just about the final outcome, but also about due process. Upholding an appeal may not be enough to resolve a dispute if the appeal process is handled badly.