Good morning and welcome back to your weekly case law update. Last week’s update focused on disability discrimination and ill-health retirement. This week we have two cases for you, on constructive dismissal and unfair dismissal.
The question in this case is:
Does failing to address a reason for dismissal at a successful disciplinary appeal amount to a breach of the implied trust and confidence?
The Claimant, Mr. Patel, was a carer for Folkestone Nursing Home, the Respondent. The Claimant was disciplined by the Respondent for allegedly falling asleep during a shift and for falsifying records that suggested patients had slept through the night.
The Claimant was dismissed and appealed the dismissal. The Respondent reinstated the Claimant. However, the appeal/reinstatement letter only dealt with the failing asleep point, not the dishonest records point.
The Claimant queried this with the Respondent but got no answer. The Claimant refused to return to work and initiated ET proceedings for constructive dismissal. After going through the ET and EAT it was held the Claimant had chosen not to return to work.
The Claimant appealed and the CoA allowed the appeal. It held that the employer failing to address the dishonesty allegation amounted to breach of the implied term of trust and confidence. This meant the Claimant was essentially constructively dismissed when he refused to return to work.
The Takeaway Point:
Yes, any points of appeal need to be resolved during the appeal process. Failure to do so could lead to a constructive dismissal claim, despite the appeal being successful! We see too many appeal outcome letters that dismiss appeals without dealing with each of the employee’s points. Arguably the decision, in this case, will also apply to grievance outcome letters.
This case also highlights the need for representation. The CoA initially rejected the Claimant’s appeal. However, it invited submissions from the Claimant, who was represented, which changed the CoA’s mind. The Respondent was not represented and did not attend the hearing, had they have done their prospects of having the appeal dismissed (and making all employers lives much easier) may have greatly improved.