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1 February 2013 0 Comments
Posted in Employment, Opinion

Appeal did not expunge dismissal

Author headshot image Posted by , Partner

Can an employer argue a claim for unfair dismissal cannot be heard in the Tribunal if, on appeal, it reinstates the employee so the dismissal is reversed and the employee reinstated? Not always :-

In Piper v Maidstone and Tunbridge Wells NHS Trust, IDS 967 page 16, the EAT overturned a Tribunal decision that the Claimant’s dismissal was nullified by the employer deciding on appeal to substitute a sanction short of dismissal. The Tribunal had decided on this basis that it had no jurisdiction to hear the claim of unfair dismissal because the Claimant had been reinstated.

However the EAT did not agree. Under the employer’s contractual disciplinary policy, a decision to substitute a lesser sanction on appeal could not take effect without the Claimant’s agreement. Since the Claimant had not agreed to be reinstated, the dismissal stood.

This is a case which may turn on its own facts, on the basis that the disciplinary policy specifically stated, with regard to a sanction short of dismissal, that “if the employee does not agree with this course of action, dismissal is the only alternative”. It is suspected that not that many disciplinary polices state this, but the decision itself is nonetheless interesting.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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