Contractual Disciplinary Procedure…. A good idea?Jul 27, 2018
Mr Patel was dismissed by a care home for sleeping when he should have been working and falsifying records. He appealed in accordance with the employers’ contractual disciplinary procedure. The appeal was successful but the letter telling Mr Patel and inviting him to return to work made no reference to the allegation of falsifying records. Mr Patel wrote asking for clarification. The employer failed to respond and so Mr Patel did not return to work and made a claim of unfair dismissal.
The Court of Appeal, agreeing with the Employment Appeal Tribunal held that a successful appeal under a contractual disciplinary procedure wipes away the dismissal. The effect of which was that Mr Patel had not been dismissed and so could not proceed with his claim of unfair dismissal. However, the failure to give full reasons and in particular to deal with the allegation of falsifying records could potentially lead to a constructive dismissal claim.
The employer would, of course, have to pay Mr Patel from the date that he was “dismissed” as if the contract of employment was still in place until the date that he resigned.
This is an unusual case in that having a contractual procedure worked to the employers’ advantage albeit they ended up with having to pay some wages and legal fees all the way to the Court of Appeal. Our view is and remains that non-contractual disciplinary and grievance procedures are the way to proceed. It takes away the risk of an allegation of breach of contract if there is a failure to follow the procedure to the letter, which happens frequently.