Unfair dismissal: Date of dismissal where appeal against dismissal is upheld but employee rejects re-engagement terms

12 March 2013

The EAT has recently considered the case of an employee who, when dismissed for misconduct, did two things –

  1. he filed a claim of unfair dismissal asking for re-instatement in his old post; and

  2. he made an internal appeal against the decision to dismiss.

His internal appeal was allowed to the extent that the employer decided to substitute a final written warning; to downgrade him; and to move him to a different workplace.

He rejected this suggestion.

So the question for the tribunal was – had he been dismissed or was his contract still in existence?

The tribunal considered that his original dismissal had been overturned by the appeal. If there was no dismissal, the tribunal had no jurisdiction to consider his claim.

The EAT disagrees.

In this case, the employer’s disciplinary policy made it clear that, in exceptional circumstances, on an appeal against dismissal, an alternative sanction short of dismissal might be considered. However, the policy clearly stated ‘if the employee does not agree with this course of action, dismissal is the only alternative’.
So, in this case, because the employee did not agree to the alternative sanction, the original dismissal still stood and could form the basis of his claim.

Point to note –
• Employers should be aware that in a case like this the wording of their policies may be crucial. In the leading case of Roberts v West Coast Trains, the claimant was held to be no longer dismissed once the outcome of the appeal hearing (the sanction of dismissal was replaced with a reduction in grade) was known. In particular check that the terms of any disciplinary policy are contractually binding on the employees.