Beware the employer who reinstates an employee following a successful appeal against dismissal but then seeks to impose conditions to the reinstatement, particularly if the original decision to dismiss was based upon a flawed disciplinary or capability procedure.
In the recent EAT case of Thomson v Barnet Primary Care Trust UKEAT/0247/12, a district nurse was summarily dismissed on capability grounds. She lodged an appeal and was successful. So far so good and the PCT probably felt it was out of the woods. However, although she was reinstated with full back pay for the period between the initial dismissal and the outcome of the successful appeal, her employer, a primary care trust said she could only actually return to work if she accepted (a) a final written warning to remain on her file for three years; (b) attendance on a training programme and (c) a competency assessment. She was suspended on full pay whilst she decided whether to accept these conditions. After a period of time during which the PCT and the nurse were wrangling over these conditions, she resigned claiming constructive dismissal, stating that the reasons for her resignation were the fact that the PCT had committed significant contract breaches prior to her original dismissal and had compounded those breaches by seeking to impose new contractual terms upon her following her reinstatement.
The employment tribunal held that the Claimant, in accepting her pay whilst effectively suspended, had accepted the new conditions. It also held that she was not able to rely upon any alleged breaches which occurred prior to her dismissal as she had effectively waived them by accepting her pay.
The EAT disagreed and upheld the Claimant’s appeal. Although she never returned to her post, her employment had been reinstated, the effect of which was that there had been no dismissal. The dismissal effectively vanished. However, the primary care trust’s handling of the disciplinary process, combined with the subsequent imposition of the conditions, amounted to a repudiatory breach of her contract. The EAT held that the tribunal had erred in its conclusion that the employee had waived the right to complain about breaches which occurred prior to the original dismissal because the success of her appeal meant that she hadn’t actually ever been dismissed. The dismissal was as if it had never taken place and as such the Claimant could not be found to have accepted the new contract terms or waived the previous breaches.
So what should an employer do when it decides to overturn a decision to dismiss on appeal? In my opinion, the first thing the employer must decide is whether the success of the employee’s appeal was because of the employer’s own failure to follow its original procedure properly or whether it was because the employee brought new evidence to the appeal which meant the dismissal was no longer appropriate. If the former (as in this case) then it would seem to me to be wholly inappropriate to try and impose a different sanction (even if the relevant procedure allowed for this) as the imposition of any sanction would be based upon a flawed procedure.
My advice in this case would be for the employer carry out the procedure again but this time correctly. If, at the end of the process, it determined to dismiss or instead that some lesser sanction could be imposed in accordance with its own procedure, then it could be fairly confident in the safety of its decision. However, if the employer determined when considering the employee’s appeal that the decision to invoke the procedure which led to the original decision to dismiss had not been the right decision, then the only option is to reinstate the employee without invoking any conditions. It would also be very wise to apologise to the employee in either case!