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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689 (17 July 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1689.html Cite as: [2018] IRLR 924, [2018] EWCA Civ 1689, [2019] ICR 273 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ RICHARDSON
UKEAT/0348/15/DM and UKEAT/0006/16/DM
Strand, London, WC2A 2LL |
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B e f o r e :
SIR ERNEST RYDER, SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE SALES
____________________
Ramesh Patel |
Appellant |
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- and - |
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Folkestone Nursing Home Ltd |
Respondent |
____________________
The Respondent did not appear and was not represented
Hearing date: 9 May 2018
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Crown Copyright ©
Lord Justice Sales:
Factual background
"Capability/Disciplinary Appeal Procedure
1. You have the right to lodge an appeal in respect of any capability/disciplinary action taken against you.
2. If you wish to exercise this right you should apply either verbally or in writing to the person indicated in your individual Statement of Main Terms of Employment.
3. An appeal against procedure will normally be conducted by a member of staff not previously connected with the process so that an independent decision into the severity and appropriateness of the action taken can be made.
4. If you are appealing on the grounds that you have not committed the offence then your appeal may take the form of a complete re-hearing and reappraisal of all matters so that the person who conducts the appeal can make an independent decision before deciding to grant or refuse the appeal.
5. You may be accompanied at any stage of the appeal hearing by a fellow employee of your choice. The result of the appeal will be made known to you in writing, normally within five working days after the hearing.
6. We reserve the right to allow third parties to chair any formal hearings."
"If the respondent was going to revoke the [appellant's] dismissal that more serious allegation needed to be addressed so that the [appellant] knew where he stood on it. I find that what the letter amounted to was an offer for the [appellant] to return to work on an unspecified basis and left the significant issue of the second allegation undealt with, particularly as to what its future effect on the [appellant] might be. It did not for example tell the [appellant] that the second allegation too had been dismissed or tell him that no [DBS] report had been made. There was no clarity as to the outcome of the appeal as regards the second allegation and as regards the basis on which the [appellant] was to return."
Discussion
"A preliminary point must be considered, which arose from questions put to counsel in the course of the argument. A possible view might be that when an employee whose contract entitles him to a domestic appeal is summarily dismissed, the dismissal does not take effect until the refusal to entertain an appeal or its ultimate rejection effectively confirms the dismissal. If this view were right, Mr. Lee [counsel for the employer] readily concedes that his case would be unarguable. [What is now section 97(1)(b) of the Employment Rights Act 1996] provides that "the effective date of termination" in relation to an employee whose contract of employment is terminated without notice, means "the date on which the termination takes effect." The application of this provision was considered by the Court of Appeal in J. Sainsbury Ltd v Savage [1981] ICR 1 where an employee had been summarily dismissed on 21 February 1978. His domestic appeal was heard on 30 May and dismissed by letter dated 1 June 1978. He could only establish that his total period of employment was sufficient to qualify him to make a claim of unfair dismissal if it included the period from 21 February to 1 June 1978. The Court of Appeal held that it did not. My noble and learned friend, Lord Brightman (then Brightman L.J.), quoted at p. 5 with approval the following passage from the judgment of the Employment Appeal Tribunal [1979] ICR 96, 102:
'In our view, when a notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered, then the dismissed employee is to be treated as being 'suspended' without pay during the determination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act.'
I entirely agree with this reasoning in the absence of an express contractual provision to the contrary effect. In the instant case the effective date of termination of the appellant's contract of employment was 25 February 1982."
This passage is obiter so far as concerns a case where the domestic appeal is successful. But it is powerful persuasive authority concerning the meaning and effect of an appeal provision in a contract of employment. In the contractual term in the case before us there was no express provision to disapply the usual interpretation of a term providing for a contractual right of appeal as stated by Lord Bridge.
"It was held by the Appeal Tribunal, correctly in my view, that the decision on the internal appeal was not a matter of creating a new contract for a new position: it was a question of giving effect to a decision to apply a different sanction on appeal than had been applied at first instance. The sanction applied on appeal was one specified in the existing contract. Within that existing contract it was possible to demote Mr Roberts without terminating his existing contract and without making an offer to enter into another contract re-engaging him into a different position."
"13. The Tribunal found in terms, as we have seen, that the demotion did not involve a termination of the original contract and that no new contract was entered into following the demotion. That, [counsel for the employer] submits, and we accept, was a conclusion that they were entitled to reach. Indeed, it is in accordance with the analysis in the Beckett case that the demotion was pursuant to a specific power given in the contract, as it was in BBC v Beckett [[1983] IRLR 43]. We do not say that the demotion can never in any circumstances give rise to a dismissal; no doubt there will be cases where it may have that result if there are significant changes in terms and conditions of employment, at least, if there is no contractual power to effect the demotion which is accepted by an employee. In addition, in some cases, as indeed in the Beckett case itself, the demotion may give grounds for the employee alleging constructive unfair dismissal. However, that argument was never advanced in this case.
14. Mr Clement, for the Appellant, submits that the Savage and Beckett decisions can be distinguished on two principal grounds. First and foremost in this case, the Originating Application was lodged prior to the appeal being considered. Mr Clements submits that the question of whether or not there has been a dismissal must be considered as at the date when the Originating Application was lodged. At that date, there had been no reinstatement in any position and accordingly the dismissal of 6 November should stand. As Mr Clement accepts, the logic of this argument is that, even where the reinstatement is in fact complete, the employee will, nonetheless, be entitled to make a claim for unfair dismissal arising out of the original determination of the contact, provided that the Originating Application is lodged prior to the appeal being heard. In those circumstances, the employee will be entitled at one and the same time to pursue both the appeal and any claims he may have for unfair dismissal. Of course, the fact that he may be reinstated will affect the remedies that he would be entitled to receive.
15. Plainly, if the employee, having lodged the appeal, withdraws from it, then the employer cannot seek to determine that appeal. In those circumstances, the employee can rely upon the original decision to dismiss. But, in our judgment, if the employee chooses to keep the appeal alive, then he takes the risk that if he is subsequently reinstated in employment, his unfair dismissal claim will be defeated, and that is so even if he lodges an Originating Application prior to the appeal being determined. We say this for a number of reasons. First, nothing in any of the authorities suggests that the rights are crystallised at the date when the Originating Application is lodged. On the contrary, it seems to us that cases such as the Tipton case, to which we have made reference, indicate that the date of termination should not be considered as a watershed so as to exclude matters arising thereafter. Similarly, it seems to us that there is no reason to treat the date of lodging the Originating Application as a watershed either. Take this specific example: in Tipton, the House of Lords held that an employer may be considered to have acted unfairly if he refuses to permit the employee to pursue a right of appeal. Is the Tribunal to be deprived of considering that evidence if, in order to protect his position, the employee has lodged an Originating Application immediately following the termination of his employment, and the employer's refusal to permit the appeal to be pursued is not made until after that date? In those circumstances, we have no doubt that the Tribunal would be entitled to have regard to that evidence, notwithstanding that the refusal of the employer would have, in that case, occurred after the Originating Application had been lodged. Similarly, in this case, it seems to us that the Tribunal must have regard to the effect of the successful appeal, albeit that the Originating Application had been lodged by that date.
16. Second, the argument of Mr Clement would lead to certain arbitrary results. It may be quite fortuitous whether the appeal is determined before or after the Originating Application is lodged. Take this case; the original appeal was to be heard on 30 December, before the Originating Application was lodged. At the employee's instigation, the appeal was adjourned and, in the event, it was not heard until after the Originating Application was lodged. It does not seem to us to be satisfactory in principle that the employee in the one case should be entitled to pursue an unfair dismissal claim but not in the other.
17. Finally, Mr Clements submitted that the principle in Sainsbury v Savage could apply only in circumstances where the employee could be said to have been successful in his appeal. Whether he has been successful, he submitted, would depend upon the grounds on which he mounted his appeal and the decision of the appeal body. If the appeal were wholly successful, then he accepted that the effect of reinstatement would be to cancel the original termination but he submitted that if it were not wholly successful then the original termination would stand. In this case, it was not wholly successful because of the sanctions that were imposed by the appeal body. Mr Clement accepted that the logic of this argument is that if the employee appeals against a dismissal on the grounds that he has committed no misconduct at all, and the appeal body reduces the dismissal but nonetheless imposes some sanction such as a warning, then, in those circumstances, the appeal could not be said to have been successful and the original dismissal would stand.
18. For this proposition, he relies upon certain language in the authorities which do talk of the Appellant succeeding in his appeal and thereby being reinstated, for example Sainsbury v Savage itself. With respect, it seems to us that this argument cannot be right. First, it is a wholly imprecise principle for determining whether or not the original termination stands. It would involve a careful consideration of the precise grounds on which the appeal had been mounted and the effect of the decision of the appeal body. Second, and perhaps more importantly, the question of success or otherwise of an appeal has no bearing at all, it seems to us, on the statutory question, namely whether the contract of employment has been terminated. It is plain from the authorities that if an employee is reinstated, that is taken to have retrospective effect. The notion that it has retrospective effect if the employer is satisfied with the outcome of his appeal, but not if he remains dissatisfied, has no grounding in any principle or rationale whatsoever. Finally, this argument is, in any event, inconsistent with the authority of the Beckett case itself. Mr Clements submitted that, in that case, the Appellant was only appealing against the penalty that had been imposed upon him. He said that he was not appealing, as was the Appellant in this case, against the very finding that there had been any misconduct at all. But we think that cannot be right, as is clear from paragraph 8 of the Decision. For these reasons therefore, we are satisfied that the Tribunal properly considered itself bound by the authorities in Sainsbury v Savage and BBC v Beckett."
"(1) The employment contract of Mr Roberts included provisions in the staff handbook, in the Onboard Terms and Conditions and in the Procedure Agreement, which entitled West Coast Trains to impose a range of sanctions when disciplining an employee for misconduct. That range could be imposed either at first instance or on an appeal brought by an employee, who was dissatisfied by the first instance decision.
(2) The range of sanction included dismissal. That was the sanction imposed at first instance and was effective at the date when Mr Roberts presented his complaint of unfair dismissal to the Tribunal.
(3) The range also included reduction in grade or demotion. That was the decision ultimately taken on Mr Roberts's appeal.
(4) The outcome of the appeal procedure initiated by Mr Roberts, and not withdrawn by him before the completion of the appeal procedure, was that the decision to dismiss should be replaced by a decision to demote.
(5) The terms of Mr Roberts' employment contract permitted West Coast Trains to impose such a sanction in place of the earlier decision to dismiss, so that they could retrospectively achieve a position where he was not dismissed for the purposes of bringing an unfair dismissal claim.
(6) It was within the terms of that contract that the appeal decision was taken. It was not necessary to effect an express reinstatement to the position of chef previously held by him, nor was it necessary to make an offer to him to enter into a new contract in order to continue Mr Roberts' contract of employment."
It seems to me that in this passage Mummery LJ was going out of his way to emphasise that the outcome of the appeal in Roberts turned upon the special term in the employment contract, which permitted the employer to allow the appeal and demote the employee without that involving any breach of contract.
"25. In my view, there was a misunderstanding on the part of Mr Roberts in thinking that, when he received the notification of the appeal decision, he was being made an offer, which he could accept or reject. What was being notified to him, as was made clear in a later letter, was the continuation of the contract. He acted as if the contract was being continued when sick notes were submitted by him after the date of the appeal decision.
26. In summary, the effect of the decision on the appeal was to revive the contract of employment terminated by the earlier decision to dismiss. That was something which Mr Roberts had agreed could be done by West Coast Trains, as employer, as part of the disciplinary process, including the appeal procedure which he himself had initiated.
27. The fact that he had made a complaint of unfair dismissal to the Tribunal at a date when he was still in a state of dismissal, and before the appeal had been heard, does not affect the legal position. It is legally irrelevant. It would have been relevant, if he had never instituted an appeal and/or if he had instituted an appeal, he had withdrawn his appeal before a decision was made. In such circumstances, the initial dismissal would have stood. I am unable to accept the submission made by Mr Clement that somehow the date of the issue of the proceedings freezes the position on jurisdiction, and that it is not permissible for the Employment Tribunal to look at the real world as it existed at the date when the case came on before them at the hearing."
Conclusion
Sir Ernest Ryder, Senior President of Tribunals:
Lord Justice McFarlane:
Lord Justice Sales:
Sir Ernest Ryder, Senior President of Tribunals:
Lord Justice McFarlane: