The recent EAT decision in Piper –v- Maidstone & Tunbridge NHS Trust held that in some cases a lesser penalty imposed on an appeal did not expunge the employee’s original dismissal.
Reverend Piper was employed as a chaplain and dismissed by Maidstone & Tunbridge NHS Trust for gross misconduct. The Trust’s disciplinary procedure which formed part of Reverend Piper’s contract provided that transfer to an alternative post may be substituted for a dismissal – however, if an employee did not agree to this transfer then dismissal was the only alternative.
Reverend Piper appealed against his dismissal and the Trust decided to substitute the dismissal for a lesser sanction of a final warning, demotion and transfer of work location. This lesser sanction was refused by Reverend Piper and he proceeded to make a claim in the Tribunal for unfair dismissal. The Trust defended the claim on the grounds that the Reverend Piper had not been dismissed and the Tribunal therefore had no jurisdiction to hear the claim. The Tribunal accepted the Trust’s arguments and dismissed the claim.
On appeal, the EAT held that the Trust was not entitled under their policy to impose a lesser penalty on an employee without their agreement. As Reverend Piper had not agreed to the lesser sanction, the original dismissal stood and therefore he was entitled to proceed with his unfair dismissal claim.
This case is very much specific to its facts because of the wording of the disciplinary policy. Most employers will want the certainty of a demotion not being subject to the employee’s consent which will mean ensuring the disciplinary procedure is contractual and removing reference to consent being required. However, for employers, the practical issues arising out of this are:
- If a dismissal is overturned on an appeal and an employee is reinstated, the employee will (unless their contract states otherwise) be entitled to back-pay and for their continuity of employment not to have been broken. An employer’s failure to pay back-pay could result in a claim for unlawful deduction from wages, breach of contract or constructive dismissal.
- If the employee has lodged an unfair dismissal claim at the Tribunal and there is an internal appeal pending, the employer should notify the Tribunal of this and reserve its right to plead that the Tribunal has no jurisdiction to hear the claim should the appeal be successful and the original dismissal expunged. This will be the case regardless of whether the dismissal stood at the time the claim was lodged.
- If an appeal is allowed but the employee fails to return to work following reinstatement, the employer will need to clarify the employee’s position before taking action in accordance with the appropriate procedures.
- Where demotion is grossly out of proportion to the disciplinary offence the employee may have grounds to refuse to return to work and claim they have been constructively dismissed.
- If a disciplinary procedure is non contractual, the position regarding reinstatement on appeal is less clear and it is difficult to see how, where it does not have a right to do so under its contract with the employee, an employer can unilaterally replace a dismissal with an alternative sanction of its choosing e.g. a demotion. Employees may argue that a unilateral demotion amounts to an offer to re-engage the employee on new terms and the original dismissal stands – if this is the case the employee will be able to bring a claim for unfair dismissal.
- There have been some suggestions that an employee may have consented to the substitution of an alternative sanction by embarking on an appeal. The issue of consent is however fact sensitive and this would need to be considered on a case by case basis.