Now you see it, now you don’t: the strange case of the vanishing dismissal (or possibly not).

When someone is dismissed from their employment for misconduct the ACAS Code of Practice states that the employer should allow the opportunity to appeal and, in most cases, the employee will be seeking for the dismissal to be overturned and to be reinstated to their formal role. The Code also requires that that appeal and the resulting decision should not be unreasonably delayed.

In most cases when an employee is dismissed and the appeal is heard promptly then that is the end of the matter – the employee is either reinstated, decides to let the matter drop, or pursues an unfair dismissal claim after they know the outcome of their appeal.

Sometimes however an employer will be slow in responding and concluding an appeal hearing, and the outcome is not known until after the deadline for bringing an unfair dismissal complaint has passed (I suspect this is often an intentional decision to try to avoid future challenge relying on the dismissed employee’s ignorance of unfair dismissal time limits).

For those employee’s dismissed who do understand employment tribunal time limits and are still awaiting an appeal outcome in order to protect their ability to bring unfair dismissal claims then they must lodge a claim before their appeal has concluded. Faced with this scenario the employer does not just have a dismissal appeal to decide, it also has an unfair dismissal claim to respond to and defend.

So, what happens if after the tribunal claim has been submitted an employer decides to uphold the appeal and so give the employer their job back. It is here that employment law introduces a sprinkle of magic into the equation.

My assistant today to demonstrate the magical solution employment law has developed is Mr Roberts, claimant in the case of Roberts v West Coast Trains [2004] IRLR 789. Mr Roberts was dismissed from his employment on 6 November 2001 because he was considered to have engaged in misconduct sufficiently serious to justify his dismissal. On the following day he received written confirmation of that decision and there is not question that he was at that time dismissed. On the 8th of November he lodged an appeal against that dismissal. On the 4th February 2002, just under three months after his dismissal and with no appeal decision having been made by his employer Mr Roberts submitted an unfair dismissal claim to the employment tribunal.

The subsequent legal case that was to be heard later coalesced in the Court of Appeal on one question: was Mr Roberts dismissed?  There can be no doubt that at that time the question could only be answered one way – the man was not getting paid by West Coast Trains, had been told he didn’t have a job, and quite possibly spent his days watching daytime TV – of course he had been dismissed! At the time the employment tribunal claim had been submitted there was no legal question to be answered as to whether Mr Roberts was dismissed – he had been.

However, four days later the first signs of enchantment emerged. Mr Robert’s former employer evidently remembered there was an unresolved appeal languishing in the ‘to do’ pile and moved this to the top of the pile and heard his appeal. And at this point something remarkable happened. Whereas the magician may exhort ‘abracadabra’ to elicit the vanishing of the rabbit up the sleeve, here the words “appeal upheld” resulted in no less a magical disappearance. By allowing the appeal against dismissal and instead substituting a different outcome – a final warning and demotion – the dismissal that was unambiguously present when the Mr Roberts submitted his employment tribunal claim vanished.

That was the formal finding of the Court of Appeal, albeit with less reference to magic. At paragraphs 27-28 the Court of Appeal explained its decision:

the effect of the decision on the appeal was to revive the contract of employment terminated by the earlier decision to dismiss. That was something which Mr Roberts had agreed could be done by West Coast Trains, as employer, as part of the disciplinary process, including the appeal procedure which he himself had initiated.

The fact that he had made a complaint of unfair dismissal to the Tribunal at a date when he was still in a state of dismissal, and before the appeal had been heard, does not affect the legal position. It is legally irrelevant. It would have been relevant, if he had never instituted an appeal and/or if he had instituted an appeal, he had withdrawn his appeal before a decision was made. In such circumstances, the initial dismissal would have stood. I am unable to accept the submission made by Mr Clement that somehow the date of the issue of the proceedings freezes the position on jurisdiction, and that it is not permissible for the Employment Tribunal to look at the real world as it existed at the date when the case came on before them at the hearing.

 

There are some sensible reasons for this principle but it does have drawbacks, it certainly departs from the usual position that an employment tribunal will only consider actions that take place before a legal claim is submitted. It can also create a ‘get out of jail free’  option for employers: One the one hand, delay the appeal consideration in the hope the employee is ignorant of employment tribunal deadlines and so avoid an unfair dismissal challenge because the employee is now out of time. On the other, if the employee does make a challenge while an appeal is outstanding and they know they have a risk of losing the case then the employer can allow the appeal which does mean they regain their post but it also means that the employee’s case will be dismissed, irrespective of how badly the employer treated the employee. To give one example, I am aware of a recent case where an dismissal appeal was upheld over 12 months after the dismissal itself – that is not the way the process should work if fairness of proceedings was the priority but it is the approach that remains. And so, if an dismissal appeal is upheld then any unfair dismissal complaint relating to that original decision will necessarily fail.

Dismissal Resurrected? 

However, whenever something dissembles before one’s eyes there will be some desiring to put the pieces back together again. Whilst in terms of an unfair dismissal claim an appeal will always extinguish the dismissal meaning any claim for unfair dismissal will fail a dismissal can also sometimes amount to a detriment under the Equality Act 2010.

The general approach, which is also found in unfair dismissal law, is that although an employee can obtain compensation for financial loss in a dismissal but that they cannot claim compensation for the manner of their dismissal (Johnson v Unisys Ltd [2001] UKHL 13).  The exception is when the claim is that a dismissal is discriminatory under the Equality Act 2010 in which case an employee can obtain compensation for injury to feelings.

To return to the subject of dismissal and appeals what if an appeal vanishes in an unfair dismissal claim but there is also a separate complaint of a discriminatory dismissal? Although the case went against the claimant a 2013 decision of the Employment Appeal Tribunal suggested that an employee’s complaint against an alleged discrimination could in some cases be effectively remedied to remove the discriminatory conduct and so, like the vanishing dismissal mean a complaint of discrimination would fail. In Little v Richmond Pharmacology Ltd [2013] UKEAT 0490_12_2009 the claimant had complained that a flexible working request refusal amounted to indirect sex discrimination and appealed against the refusal (but was not present at work during this period). The appeal was heard and the refusal was overturned, replacing it with a three month trial period. At the EAT the fact that because the refusal was not actually applied to the claimant the appeal was found to have effectively cured any detriment in the original decision,  meaning a discrimination claim failed. However, a key feature of the decision was that the claimant did not actually suffer a personal disadvantage from the refusal. Therefore, where alleged discriminatory act was applied to a claimant it appears even if an appeal was successful it is at least arguable that for discrimination complaints the initial refusal is still actionable.

Thankfully, the position is now much clearer following the decision of the EAT in Jakkhu v Network Rail Infrastructure Ltd (2019) – the claimant was dismissed in a manner that the claimant considered was discriminatory but this was appealed and he was reinstated. The ET in the case, found that the dismissal had ‘vanished’ and so could not be relied upon. This was found to be an error of law, as explained in paragraph 57-58 of the judgement:

The ET’s primary view was that the question did not need to be answered, because the subsequent reinstatement of the Claimant meant the dismissal vanished. That, however, was to view what had happened through the prism of the case law on “dismissal”; to focus on the reinstatement of the Claimant and what that meant for the continuity of his employment rather than on the actual act of which he was complaining, which was the initial dismissal itself …

The Respondent argues that the ET was entitled to view what had happened in context, which included the subsequent reinstatement and the fact that the Claimant suffered no pecuniary loss. I do not, however, accept that that provided a complete answer in this case. This was a claim under the EqA, which allows for compensation to be awarded for nonpecuniary damages, including injury to feelings. Moreover, the ET is required to adopt a broad approach to its consideration of whether a detriment has been established: a dismissal – even if subsequently withdrawn – can give rise to a detriment and I am satisfied that the ET was wrong to hold otherwise.

And so, in Jakkhu there is now a clear statement that an overturned dismissal (and by analogy I think an overturned warning, grievance outcome etc) is still potentially a detriment for discrimination purposes which would mean if there is a concurrent unfair dismissal and discriminatory dismissal employment tribunal claim then even if the dismissal vanishes in the unfair dismissal claim there still remains a detriment for a discrimination claim.

And so, the magical vanishing dismissal is not entirely dissembled, if there is a discrimination complaint as well it is possible for that to remain, although of course the extend to which an allowed appeal mitigates any injury to feelings will be very likely to be an issue.

In unfair dismissal law