Mrs C McConville v Warrington and Halton Hospitals NHS Foundation Trust: 2416799/2019

EMPLOYMENT TRIBUNALS

Case No 2416799/2019

Between

Mrs C McConvilleClaimant

Warrington and Halton Hospitals NHS Foundation TrustRespondent

Before

Employment Judge Buzzard

Mr Heath (instructed by Solicitor) for claimant

Ms Gould (instructed by Counsel) for respondent

Date 18 December 2020

JUDGMENT

[1]Strike out of Unfair Dismissal Claim 1.1. The claimant's successful appeal against her dismissal is found to have rescinded her dismissal and accordingly the claimant is unable to pursue a claim of unfair dismissal arising from the dismissal which was appealed against. 1.2. The claimant pursues no other claim of unfair dismissal and accordingly, for this reason, the claimant's unfair dismissal claim has no prospect of success and is struck out.

[2]Preliminary Issue - Disability Status Case No. 2416799/2019 Code V 2 2.1. The claimant’s diverticulosis, associated with inflammatory bowel problems, is found to have met the definition of a disability at all relevant times to her claim. 2.2. The claimant is not found to be a disabled person as a consequence of her vertigo, the claimant having failed to provide evidence that shows on the balance of probability that the claimant's vertigo met the requirement of being a long-term condition as set out in the Equality Act 2010. 2.3. The claimant’s claim that her hypertension amounted to a disability as defined in the Equality Act 2010 was withdrawn. 2.4. The respondent has conceded that the claimant is a disabled person as a consequence of her diagnosis of depression, and was a disabled person for that reason at all relevant times.

REASONS

[1]This hearing was listed as a final hearing. For a number of reasons, it was not possible to proceed to determine all issues in the case. The hearing was converted to a preliminary hearing. As part of that preliminary hearing the issue of whether the claimant’s successful appeal against a dismissal means that she is not then able to pursue a claim of unfair dismissal arising from that dismissal was considered.

[2]These reasons relate solely to that issue. Reasons for the determination of this issue were given orally at the hearing. These written reasons were requested beyond the normal time permitted to request reasons. In the circumstances, it is appropriate for written reasons to be provided as the claimant is pursuing an appeal to the EAT. Case No. 2416799/2019 2 Issue

[3]The issue to be determined was whether an appeal against a dismissal which succeeds means the dismissal no longer exists, such that a claim that it was unfair cannot be pursued.

Relevant Facts

[4]The facts relevant to this decision were mostly not in dispute.

[5]The claimant was dismissed on 6 August 2019. The claimant’s dismissal on that date was related to her absences from work. The dismissal occurred as part of an internal process.

[6]The claimant pursued an internal appeal against her dismissal. The claimant pursued and engaged with that appeal. There was no suggestion that the claimant’s appeal had been abandoned partway through. It was pursed to its conclusion.

[7]The claimant’s appeal was successful, in that the claimant’s dismissal was rescinded. The claimant was then paid back pay going back to the date of her dismissal, and paid her salary going forward.

[8]Sometime later the claimant was dismissed. The fact that there may have been a later termination of the claimant's employment is not relevant directly to whether that appeal rescinded the earlier dismissal. The claimant’s claim does not relate to her later dismissal.

[9]There was a dispute between the parties over whether the process that led to the relevant dismissal was a disciplinary process which had contractual status.

The Law

[10]The parties referred the Tribunal to a number of authorities. These authorities all arose from claims where an appeal against a dismissal was pursued under a contractual disciplinary process.

[11]The authorities referred to all appear, to this Tribunal, to reach a very clear conclusion. That conclusion is that it is inherent in any such appeal that, unless something is explicitly stated to the contrary in the contract, the rescinding of a dismissal on appeal will make it impossible to rely upon that dismissal for the purposes of an unfair dismissal claim.

[12]There are some exceptional limits to this principle, for example if an alternative sanction is imposed which the contractual process permitted only with the agreement of the employee. None of these exceptional circumstances are in any way relevant to this case, and neither party made submissions to the effect they could be.

[13]The parties were specifically asked if they were able to point to direct authority regarding the effect of a successful appeal when the disciplinary process was not contractual. No such authority was identified by either representative, or could be found by the Tribunal. Case No. 2416799/2019 3

[14]The parties referred the Tribunal to the comments of Lord Justice Langstaff sitting in the EAT, in Salmon v Castlebeck Care (Teesdale) Ltd (In Administration) & Anor

UKEAT/0304/14/DM

. This case focussed on whether a successful appeal under a contractual process would rescind a dismissal. There was discussion in the Salmon case over whether the appeal outcome needed to be communicated and whether there needed to be an actual ‘reinstatement’ for the dismissal to be rescinded for the purposes of an unfair dismissal claim. These were not concerns in this case given the claimant was told the outcome of the appeal and reinstated with back pay.

[15]At paragraphs 36 and 37 of his judgment in Salmon LJ Langstaff states: “It must be implicit in any system of appeal, unless otherwise stated, that the appeal panel has the right to reverse or vary the decision made below. Where a decision is to dismiss, being the most draconian of sanctions, any success on appeal means that the decision is one in which dismissal does not take effect, though some lesser sanction might. I see no reason in principle why an outcome on appeal against dismissal which is favourable to an employee should not, and every reason in principle why it should, therefore automatically revive the contract which, but for the successful appeal, would have terminated on the earlier dismissal. “

[16]Given the Salmon case (along with all other authorities the Tribunal was referred to) was focussed on a contractual process leading to dismissal, these comments are not treated by this Tribunal as binding authority. They are, however, taken as obiter comments relevant to the effect of a successful appeal under a non-contractual process. They clearly refer to the position in ‘any system of appeal’.

[17]There is no other logical way to consider the effect of a successful appeal against dismissal, regardless of whether the system of appeal is contractual, pursuant to a non-contractual procedure or merely following the ACAS guidance applicable to disciplinary procedures.

[18]The claimant was not able to present a credible explanation of what difference the mere fact the appeal was not under a contractual policy would make to this principle.

[19]This principle, succinctly summarised in the comments LJ Langstaff, is therefore found to be persuasive. If an employee decides to appeal against their dismissal and that appeal is successful then their dismissal is rescinded. This precludes any claim of unfair dismissal. The question of whether the successful appeal followed a contractual process does not make any difference to that fundamental principle.

Conclusion

[20]For the above reasons the claimant cannot, as a matter of law, rely upon her dismissal on 6 August 2019 as the basis for an unfair dismissal claim. She appealed against that dismissal. That dismissal was rescinded. She was reinstated, with back pay. There is no question over communication of the Case No. 2416799/2019 4 appeal outcome, a lack of reinstatement, a loss of pay back pay being given, or any exceptional rule that could apply. There is no scope to find otherwise for non-contractual appeals, without undermining the irresistible logic that underpins the established authorities that relate to appeals under contractual procedures.

[21]This is the only dismissal the claimant relied on in her unfair dismissal claim. This means there is no prospect that the claimant’s unfair dismissal can succeed, there not being a relevant dismissal. Accordingly, the claimant’s unfair dismissal claim is struck out as having no prospect of succeeding. _____________________________ Employment Judge Buzzard Date: 27 May 2021