Patel v Folkestone Nursing Home Ltd (Rev 1), Court of Appeal - Civil Division, July 17, 2018, [2018] EWCA Civ 1689

Resolution Date:July 17, 2018
Issuing Organization:Civil Division
Actores:Patel v Folkestone Nursing Home Ltd (Rev 1)
 
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Neutral Citation Number: [2018] EWCA Civ 1689

Case Nos: A2/2016/2615 and A2/2016/2616

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HHJ RICHARDSON

UKEAT/0348/15/DM and UKEAT/0006/16/DM

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 17/07/2018

Before:

LORD JUSTICE McFARLANE

SIR ERNEST RYDER, SENIOR PRESIDENT OF TRIBUNALS

and

LORD JUSTICE SALES

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Between:

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Matthew Jackson (instructed by Leigh Day) for the Appellant

The Respondent did not appear and was not represented

Hearing date: 9 May 2018

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Lord Justice Sales:

  1. This appeal is concerned with the legal effect of a contractual disciplinary appeal procedure in an employment contract in relation to the dismissal of an employee for misconduct, whose appeal is then allowed by the employer pursuant to that procedure.

  2. The employee (the appellant) was originally dismissed by a letter of 2 April 2014 from his employer (the respondent), but was informed by a letter dated 24 June 2014 that his appeal had been successful. The appellant was not satisfied with the terms of the letter of 24 June 2014, which left important matters unresolved, and so refused to return to work. On 17 July 2014 the appellant filed claims with the Employment Tribunal (``ET''), including a claim of unfair dismissal. At a preliminary hearing, the ET identified as a question for determination whether as at 17 July 2014 there had been a dismissal of the appellant so as to allow him to bring that claim.

  3. The ET answered that question in the affirmative, on two bases. First, it held that the decision on the appellant's appeal under the contractual procedure did not undo the effect of the earlier summary dismissal, because there was no contractual provision which bound the appellant to accept that a successful appeal under that procedure had the effect of wiping out the previous dismissal. In addition, the ET held that the letter of 24 June 2014 failed properly to address critical matters of concern to the appellant in relation to one of the allegations which had been made against him (that he had falsified patient records at the care home), so there was no clarity about the outcome of the appeal as regards that allegation and as regards the basis on which the appellant was to return to work. This too meant that the appellant was not obliged to return to work and was entitled to treat himself as having been dismissed by the date he filed his claims on 17 July 2014. Accordingly, the appellant was entitled to proceed with his claim for unfair dismissal.

  4. The ET then determined that claim on the merits and held that the appellant had been unfairly dismissed. The ET made an award of compensation in his favour.

  5. On the respondent's appeal to the Employment Appeal Tribunal (``EAT''), further authority was cited by the respondent on the issue whether the appellant had been dismissed by the relevant date. The EAT allowed the respondent's appeal, on the footing that the effect of the respondent's letter of 24 June 2014, stating that the appellant's appeal under the contractual procedure had been successful, was that he should be treated as not having been dismissed at the time of the dismissal letter of 2 April 2014. According to the EAT, this meant that the appellant had not been dismissed at all by the time he issued his claim on 17 July 2014. He was therefore not entitled to claim for unfair dismissal. It seems that the EAT considered that in law it had been the appellant's own choice not to return to work with the respondent, rather than having been dismissed.

  6. The principal issue on this appeal concerns the first ground of decision by the ET, which was overturned by the EAT. In my view, however, a further point arises and ought also to be addressed. This concerns whether the appellant in fact also made a claim in his claim form that he had been constructively dismissed by 17 July 2014, by treating the employment relationship at an end by reason of the respondent's failure in its letter of 24 June 2014 and thereafter to address properly and rectify matters in relation to the allegation of falsification of records which had been made against him. I deal with that at the end of my judgment.

    Factual background

  7. In January 2008 the appellant commenced employment with the respondent as a care assistant working in the respondent's nursing home. His contract of employment incorporated the respondent's Employee Handbook. This included a section setting out a disciplinary procedure.

  8. For the purposes of this appeal, the material part of the disciplinary procedure is that concerned with appeals by an employee in respect of disciplinary action taken against him. It provides as follows:

    ``Capability/Disciplinary Appeal Procedure

  9. You have the right to lodge an appeal in respect of any capability/disciplinary action taken against you.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. We reserve the right to allow third parties to chair any formal hearings.''

  15. In March 2014 the appellant was charged with two disciplinary offences, said to amount to gross misconduct: (i) that he had been found asleep whilst on duty and (ii) that on the night of 21 March 2014 he had falsified the records of certain residents at the care home by pre-recording that they had slept through the night and had also failed to record the checks he had in fact made in respect of them at particular times during the night. The appellant's defence to (i) was that he had been asleep during his break, and not during his working hours. His defence to (ii) was that this way of filling in the resident records was common at the nursing home and records in this form in this and similar cases had been signed off by senior managers without criticism.

  16. There was a disciplinary hearing on 28 March 2014. After this the respondent sent the appellant its letter dated 2 April 2014 stating that both charges had been found to be proved, that they constituted gross misconduct, and dismissing him with immediate effect and without notice. In its letter, the respondent said that it would refer the appellant's name to the relevant regulator in respect of care homes (the Disclosure and Barring Service, ``DBS'') in relation to charge (ii), because residents had been put at risk by his actions in failing to maintain complete and accurate records. This was obviously a serious matter for the appellant.

  17. The appellant indicated that he wished to appeal in relation to both charges against him, pursuant to the contractual appeal procedure. The appeal hearing took place on 8 May 2014 before a Mr Shah. By the letter from the respondent dated 24 June 2014, the respondent informed the appellant that his appeal had been allowed.

  18. The letter was, however, in curious and unsatisfactory terms. It referred only to charge (i) and stated that the finding on the appeal was that the appellant had indeed been asleep during an unpaid break, as he had claimed, and that this was not in breach of any company rule or procedure. It did not refer at all to charge (ii), make any substituted finding in relation to that charge or say that the notification to the DBS regarding the appellant had been withdrawn. The letter stated that the appellant would be contacted as soon as possible to arrange a date for him to return to work. It concluded, ``You have now exercised your right of appeal under our procedures and this decision is final''.

  19. Mr Shah's evidence to the ET, which it accepted, was that on investigation in respect of charge (ii) he came to the conclusion that the appellant's conduct was not as serious as it had appeared at first, in that he had not `made up' false entries in the residents' records of events which did not in fact happen, as matters transpired, and that in light of the appellant's good employment record it was not a matter which merited dismissal. However, Mr Shah did not tell the appellant this and, as I have said, it was not explained in the letter of 24 June 2014 by which the appellant's appeal was allowed. The issues in relation to charge (ii) were simply left up in the air.

  20. The appellant was not happy about this. He was also unhappy about the way in which the disciplinary procedure had been handled by the respondent. He maintained that Mr Shah had not been the appropriate person to deal with his appeal. In subsequent exchanges with the respondent, the appellant considered he did not receive satisfactory responses about these matters. He did not return to work, taking the view that he was not obliged to do so and could treat himself as having been dismissed.

  21. The appellant commenced proceedings in the ET claiming unfair dismissal, wrongful dismissal and wrongful deduction of holiday pay due to him. At first, the respondent conceded that the appellant had been dismissed. However, when the proceedings came to a hearing the respondent was permitted to withdraw that concession and to argue instead that, by reason...

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