Now you see me, now you don’t

23 May 2013

In May 2008, Ms Thomson, a District Nurse working for Barnet Primary Care Trust, was summarily dismissed following a three day hearing under BPCT's capability procedure.  Concerns had been raised in relation to Ms Thomson's performance following a lengthy period of absence. 

In October 2008, following Ms Thomson's appeal against the decision to dismiss her, BPCT found that although there was evidence of poor performance, there had also been procedural flaws in the way the capability procedure had been applied.  BPCT therefore revised their decision to dismiss and instead reduced the sanction to a final written warning, resulting in Ms Thomson's reinstatement with full back-pay.  BPCT also imposed a number of conditions on Ms Thomson which had to be met before she would be allowed to return to work, including a full assessment of her competency, a mentoring programme and associated training and the final written warning would remain on her file for three years.   Ms Thomson was required to accept these conditions in order to return to work.  On 6 December 2008, Ms Thomson resigned, claiming that BPCT had effectively prevented her from returning to work.  She raised a grievance but this was rejected. 

In response to Ms Thomson's claim for constructive dismissal, the Employment Tribunal decided that Ms Thomson's acceptance of the back-pay that had been offered to her indicated that she had also accepted a new contractual basis to her relationship with BPCT.  Alternatively, if her original contract had continued, Ms Thomson had waived any prior breaches and accepted the varied terms on which her employment was reinstated, including the requirement for retraining and the imposition of a final written warning on her file.  In these circumstances, the Tribunal considered that the conditions that were applied by BPCT did not amount to a breach of contract and even if there had been a breach, Ms Thomson had not resigned in response to it.  Therefore, Ms Thomson's claim for unfair dismissal failed.

Unfortunately, the Employment Appeal Tribunal (EAT) did not agree with the Tribunal's decision.  The EAT stated that the Tribunal had been wrong to infer a new contractual relationship from Ms Thomson's acceptance of back-pay.  The effect of her reinstatement was to revive her original contract of employment.  As such, the earlier breaches of contract were neither accepted nor waived by Ms Thomson (as BPCT had argued) and so she was able to rely on them in her complaint about a series of events which, in aggregate, amounted to a repudiatory breach by her employer.  The EAT found that the real reason for Ms Thomson's resignation was the culmination of what she saw as a two-year refusal to allow her to return to work.  In effect, the imposition of the conditions amounted to the last straw. 

Our view

In circumstances where an employer imposes a different sanction on appeal during a disciplinary process, including the offer of a different, downgraded position, this results in the dismissal "vanishing" and the original contract continues.  However, it should be noted that in some cases, the nature of the alternative sanction may be such that while the original dismissal vanishes, the employee is then entitled to treat himself as constructively dismissed.