Employment Law Cases

Phoenix Academy Trust v Kilroy

If an internal appeal against dismissal overturns the dismissal, then in law it’s as if there was no dismissal – even if the employee makes it clear when appealing that they have no intention of returning to their job whatever the outcome of the appeal.

Background

Mr Kilroy was summarily dismissed by his employer, just before it received his resignation letter alleging constructive dismissal. He invoked the internal, contractual appeal procedure. Before it was convened, Mr Kilroy’s solicitor wrote to his employers stating that, whatever the outcome, he wouldn’t be returning to work. This was closely followed by Mr Kilroy lodging a tribunal claim for unfair dismissal based on his summary dismissal. The appeal was heard and upheld, with Mr Kilroy being reinstated subject to a final warning. He was asked to return to work but refused and continued with his unfair constructive dismissal claim. A tribunal held that he hadn’t affirmed his contract (by invoking the appeal) and that he had been unfairly (constructively) dismissed. His employer appealed.

EAT decision

The appeal was allowed.

The tribunal’s conclusion about the effect of Mr Kilroy’s adoption of the contractual appeal process could not stand in light of the Court of Appeal decisions in Kaur v Leeds Teachings Hospitals NHS Trust and Patel v Folkestone Nursing Home Ltd – to which the tribunal had not been referred.

Where an employee is dismissed and then brings an internal appeal against that dismissal, if that appeal overturns the dismissal then in law it is as if no dismissal has occurred, even if the employee made it explicitly clear when submitting the appeal that they have no intention of returning to their job whatever the outcome of the appeal. By invoking the appeal process, the employee is necessarily treating the contractual relationship as continuing to exist.

If, however, breaches of the implied term of trust and confidence continue through the employer’s conduct of the appeal process, then the employee may be able to rely on the totality of the employer’s acts forming part of a series amounting to a repudiation of trust and confidence.

The EAT sent the case back to the tribunal to consider the complaints raised by Mr Kilroy about his employer’s conduct while the appeal was being conducted.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0264_19_0602.html

Comment

This is a useful reminder to employers about the effect of upholding an appeal and how they can restore an employee to employment – provided they have behaved reasonably and fairly during the process, then the employee has not been dismissed and cannot successfully claim unfair dismissal. Equally employees who do not want to return will have to balance up the chance of a successful appeal with a reduction in compensation for failure to follow the ACAS Code of Practice.