An employee is refusing to return to work after their dismissal has been overturned on appeal, do they have a right to claim unfair dismissal?

Part of a fair disciplinary procedure includes ensuring that the employee is given the right to appeal against the decision. If an employee is dismissed and they feel this dismissal is not justified, then they may exercise this right and the outcome they would seek would be for the decision to be overturned.

If the dismissal decision is overturned at appeal, then the employee has the right to return to work and their continuity of employment is fully protected, i.e. they should be treated as if the dismissal never occurred.

But what should you do if you inform the employee that the decision has been overturned but they are not willing to return to work? Do they have a right to make a claim for unfair dismissal against you?

The Employment Appeal Tribunal has considered this and confirmed that if an appeal has been overturned and the employee has been reinstated then they would be unable to claim unfair dismissal, as long as the decision of the appeal has been communicated to the employee in writing stating the outcome.

This is what happened in the case of Folkestone Nursing Home Ltd v Patel andthe employee’s claim was not accepted as he had been reinstated.

Unfortunately, in these situations, it would not prevent an employee from resigning and claiming constructive dismissal, but the employer would be able to demonstrate the fairness of the disciplinary process in the fact that the decision was overturned on appeal and the employee would have to show how the company was in breach of their duty to maintain trust and confidence.

It is therefore important to act reasonably throughout the process and to follow a fair procedure throughout.

The starting point for this is to have a written disciplinary procedure that is available to/communicated to all employees (this is also a legal requirement). The procedure needs to be in line with the ACAS code and then it is important that this is followed in any disciplinary situation. 

If you have any questions about the disciplinary procedure or require support with any aspects relating to taking disciplinary action, please contact us.

You may also want to look at YourHR.space to see how this can ensure you have a robust procedure in place that is communicated to all your employees.

Fiona Haworth

You can contact Fiona on fiona@practical-hr.co.uk

If you feel that you need guidance or advice on this matter, please call Practical HR on 01702 216573 or email Fiona on the above.