Internal appeal may nullify dismissal

Where an employee is dismissed, and then brings an internal appeal against that dismissal, if that appeal overturns the dismissal then in law it will be as if no dismissal had ever occurred, even if the employee made explicitly clear when submitting the appeal that they have no intention of returning to their job.

To make a claim for unfair dismissal, there needs, in law, to have been a dismissal on which the claim can bite:

• that requirement is straightforwardly satisfied when the employer expressly dismisses the employee
• where the employer does not do that, the employee may resign and seek to claim constructive dismissal; but that is a harder path for the employee to take as the employee must demonstrate that the employer acted in such a way as to repudiate the contract

In this context, the situation can be complicated further where the employee, following dismissal, mounts an internal appeal with the employer.

The Court of Appeal cases of Roberts v West Coast Trains and, much more recently, Patel v Folkestone Nursing Home, make clear that by making such an internal appeal:

• the employee is undertaking to be bound by the result
• if the employer, after hearing the appeal, overturns the dismissal, then the dismissal ‘vanishes’ in law, as if it had never happened, with the result that there will no longer be a dismissal on which to found an unfair dismissal claim

If the employee is happy with the outcome of the appeal, the resulting curtailment of the ability to bring an unfair dismissal claim this will be unproblematic. However, in some cases, the employee may not be happy, eg:

• the employer may, in the result of the appeal, have imposed a (perhaps significant) lesser sanction with which the employee is still very unhappy
• it may be that the employee, before the appeal was heard, was so deeply unhappy with the employer’s behaviour that:
  • he or she was not willing, whatever the outcome of the appeal, to return to the job
  • the appeal may have been brought for reasons other than getting the job back, eg to clear the employee’s name so that their future job prospects elsewhere are improved

It seems that, following this case:

• a dismissed employee who brings an internal appeal will be bound in all circumstances by the outcome (whatever their motivation in bringing the appeal), so if the result is the overturning of the dismissal they will lose the right to claim unfair dismissal on the basis of the original express dismissal
• in such cases, the only option then open to the employee will be to pursue the much harder route of seeking to establish that a constructive dismissal has occurred