UK: poor communication of successful appeal could itself amount to constructive dismissal

The Court of Appeal in Patel v Folkestone Nursing Home Ltd has confirmed that where an employee's internal appeal against dismissal is successful, the effect will be to reinstate the employee with retrospective effect. The earlier dismissal will 'vanish' without any need for the employee to 'accept' this, preventing the employee from claiming unfair dismissal based on the earlier dismissal.

However, in this case the dismissal had been based on two charges of gross misconduct, the second of which would have resulted in a reference to the Disclosure and Barring Service. The employee's appeal was successful on both counts, but the letter confirming the decision only addressed the first charge. The Court considered that the failure to communicate the decision on the second charge and to confirm that no reference would be made to the DBS was arguably a breach of trust and confidence which might amount to constructive dismissal (an issue remitted to the tribunal). The decision serves as a reminder to employers to ensure that appeal decisions are properly communicated.