Veitch Penny LLP - Exeter | Crediton, Devon

Case

Roberts v West Coast Trains Ltd
Court of Appeal Decision - (16 June 2004)

Issues

(1) Disciplinary procedures
(2) Unfair Dismissal
(3) Reinstatement

Facts

Mr Roberts was employed by West Coast Trains Limited as a Chef. An allegation of misconduct was made against him and, following a disciplinary hearing he was dismissed.

Mr Roberts lodged an internal appeal against that decision in line with the disciplinary procedure outlined in his Contract of Employment. Before the process was complete, Mr Roberts commenced proceedings in the Employment Tribunal claiming unfair dismissal. He did not withdraw from the employer’s appeal process and his appeal proceeded to a hearing, the outcome of which was that the punishment of dismissal was reduced to one of reduction in grade with the period of absence treated as suspension without pay in accordance with the Contract of Employment.

Mr Roberts did not return to work and pursued his claim for unfair dismissal.

The Employment Tribunal, as a preliminary issue, had to determine whether Mr Roberts had been dismissed for the purposes of unfair dismissal. At first instance it was found that Mr Roberts had not been dismissed, and consequently dismissed his claim for unfair dismissal.

Mr Roberts appealed against the decision to the Employment Appeal Tribunal (EAT). The EAT found that the demotion had not created a new Contract of Employment but had arisen as an alternative sanction to dismissal under the existing Contract of Employment. The decision of the appeal body was found to have retrospective effect so that Mr Roberts had to be treated as demoted as if he had never been dismissed.

Mr Roberts appealed against that decision arguing that at the time he had started proceedings at the Employment Tribunal, he had been dismissed and it was not relevant to consider what had happened after that time.

Decision

The appeal would be dismissed.

The effect of the internal appeal’s decision had meant that his Contract of Employment had been resurrected despite being terminated when the first decision to dismiss was made. The fact that he had commenced proceedings before the Employment Tribunal did not affect the legal position and was not relevant.

Comments

As a general principle, a dismissal, once announced, cannot be withdrawn. However, in this case the position is slightly varied as Mr Roberts wished to keep the appeal procedure alive, and was reinstated. As the old contract was not terminated and Mr Roberts was not re-engaged under new terms and conditions, then there will be no dismissal for the purposes of unfair dismissal.