Thursday 17 January 2013

Internal Appeals and Dismissal

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]
When, after an internal appeal against dismissal, a lesser penalty was imposed, did that expunge the earlier dismissal?

No, says the EAT in Piper v Maidstone & Tunbridge NHS Trust, on the particular facts of that case.

The Reverend Piper was employed by the Trust as a Chaplain. He was dismissed for gross misconduct. He appealed. The appeal was allowed to the extent that the Trust decided to substitute for the sanction of dismissal a penalty short of dismissal i.e. a final warning, demotion and transfer of work location. This was rejected by the employee who proceeded to claim unfair dismissal.

The Trust resisted the claim on the grounds that the original dismissal had been negatived by the appeal outcome and the employee had not therefore been dismissed. The employment tribunal agreed, and held it had no jurisdiction to hear the claim.

The EAT overruled this decision. Under the Trust's appeal procedure the employer was not entitled to impose the lesser penalty. It required the consent of the employee. If the employee had agreed, then, on the authorities, the dismissal would have been expunged. But as he had not agreed (as required by the procedure) the dismissal stood. His unfair dismissal claim could therefore proceed.

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